Judicial  Interpretation  of 
Political  Theory 


William  Bennett  Bizzell 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 

The  American  Academy 
of  Public  Affairs 
of  Los  Angeles 


Judicial    Interpretation    of 
Political    Theory 

A  Study  in  the  Relation  of  the  Courts  to 
the  American  Party  System 


By 

William  Bennett  Bizzell,  D.C.L. 

President  of  the  College  of  Industrial  Arts 


G.  P.  Putnam's  Sons 

New  York  and  London 

Gbe    fmicftetbocfter    press 

1914 


. 


T 
55 
J9/4- 


COPYRIGHT,  1914 

BY 
WILLIAM    BENNETT   BIZZELL 


m, 

/P/7/ 


PREFACE 

IN  this  age  of  the  making  of  many  books  an 
explanation  for  publication  is  always  in  order. 
The  contents  of  this  volume  consist  in  the  main  of 
a  series  of  lectures  delivered  at  the  Illinois  College 
of  Law  in  1910,  and  subsequently  printed  and 
used  in  the  extension  department  of  that  institu- 
tion. The  chapters  on  "The  Theory  of  Direct 
Legislation"  and  "The  Theory  of  the  Recall  of 
Judicial  Decisions"  have  been  added  to  the 
original  series  especially  for  this  volume,  as  these 
theories  have  developed  since  the  original  lectures 
were  prepared.  It  is  easy  to  see  that  by  the  use 
of  copious  quotations  this  volume  could  have  been 
greatly  extended,  but  an  attempt  has  been  made 
to  present  only  the  essential  teachings  of  the 
authorities  in  order  to  make  the  trend  of  the  argu- 
ment clear.  In  the  accomplishment  of  this  task 
I  fear  that  some  important  decisions  have  been 
omitted  that  should  have  been  included. 

The  writer  had  no  idea  at  the  time  the  original 
lectures  were  prepared  that  the  courts  of  the 
country  were  destined  to  come  in  for  such  a  wide 
share  of  political  attention  as  they  have  in  so  short 
a  time.  But  such  a  study  as  this  must  convince 
any  one  that  the  increased  opportunity  of  the 


iv  Preface 

courts  to  pass  on  questions  of  partisan  and  political 
views  must  eventually  direct  the  attention  of  the 
public  more  and  more  to  this  unusual  power  of 
the  courts,  and  that  the  courts  will  not  be  able  to 
escape  popular  criticism.  The  wide  attention  that 


this  question  must  attract  in  the  immediate  future 
is  the  excuse  for  the  publication  of  this  volume. 

W.  B.  B. 

COLLEGE  OF  INDUSTRIAL  ARTS, 
April  15,  1914. 


CONTENTS 

PAGE 

INTRODUCTION       ......         i 

CHAPTER 

I.    JUDICIAL    POWER    OVER    LEGISLATIVE 

ENACTMENTS         .         .         .         .18 

II.     THEORY  OF  CONSTITUTIONAL  CONSTRUC- 
TION   ......       47 

III.  NATURE  OF  THE  FEDERAL  UNION       .      64 

IV.  IMPERIALISM  v.  EXPANSION         .         .      83 

V.    THE  THEORY  OF  INTERNAL  IMPROVE- 
MENTS         .  .         .         .105 

VI.     THE  THEORY  OF  THE  UNITED  STATES 

BANK  ......     123 

VII.  THE  THEORY  OF  LEGAL  TENDER         .  144 

VIII.  THE  THEORY  OF  A  PROTECTIVE  TARIFF  165 

IX.  THE  THEORY  OF  AN  INCOME  TAX       .  184 

X.  THE  THEORY  OF  DIRECT  LEGISLATION  201 

XI.     THE    THEORY    OF    THE    RECALL    OF 

JUDICIAL  DECISIONS      .         .         .     226 

XII.     CONCLUSION 241 

APPENDICES 251 

INDEX  OF  CASES          ....     267 
GENERAL  INDEX          .         .         .         .271 


Judicial  Interpretation  of 
Political  Theory 


INTRODUCTION 

WE  are  told  by  Professor  Ellwood  in  a  recent 
book1  that  "Highly  dynamic  societies 
control  social  activities  by  what  is  known  as 
public  opinion.  Public  opinion  is  not  found  to 
any  extent  in  savage  and  barbarous  societies, 
because  social  tradition  takes  its  place.  By 
public  opinion  we  mean  a  more  or  less  rational 
collective  judgment  formed  by  the  action  and  re- 
action of  many  individual  opinions  upon  one 
another."  Under  our  system  governmental  poli- 
cies crystallize  out  of  public  opinion,  and  the 
" collective  judgment"  resulting  therefrom  finds 
expression  in  our  party  system  of  politics.  The 
social  judgment  which  is  the  product  of  the  col- 
lective  opinion  of  a  party  has,  in  more  recent  times, 
found  expression  in  a  party  platform.  The  aim 
of  party  activity  has  been  in  every  case  to  give 
these  social  judgments  the  force  of  law,  for  this  is 

„,   x  Sociology  in  its  Psychological  Aspects  (1912),  p.  334. 


2        Interpretation  of  Political  Theory 

the  only  way  by  which  their  real  merits  or  demerits 
can  be  shown. 

In  the  course  of  our  political  history  the  number 
of  these  social  judgments  has  been  numerous,  the 
^conomic.  political,  and  sjacial  changes  of  each 
decade  tending  to  multiply  them,  and  the  parties 
themselves  have  created  issues  in  order  to  give 
more  distinct  emphasis  to  certain  beliefs  deemed 
of  paramount  importance.  But  of  the  great 
number  that  have  become  of  sufficient  consequence 
to  secure  party  recognition,  few  have  been  of  fun- 
damental and  permanent  significance.  Some,  how- 
ever, have  involved  great  principles  of  government 
and  their  relation  to  our  organic  taw  has  been 
a  matter  of  fundamental  importance.  Among 
these  may  be  named,  the  judicial  theory  of  con- 
stitutional  construction,  th'e  nature  of  the  Federal 


Union  T  the  policy  of  expansion  (Imperialism  v. 
Expansion),  the  theory  of  a  national  bank,  the 
theory  of  legal  tender,  the  protective  tariff,  inter- 
nal improvements,  and  the  income  tax.  About 
these  great  questions  political  debate  has  raged 
and  learned  and  profound  judicial  opinions  have 
been  rendered  by  the  most  powerful  judicial 
tribunal  on  the  earth. 

No  student  of  our  political  history  can  fail  to 
discern  the  important  function  the  Supreme  Court 
has  performed  in  giving  its  stamp  of  approval  to 
the  social  judgments  of  parties,  or  in  pointing  out 
the  fallacies  therein.  And  the  uniformly  high  in- 
tegrity of  the  members  of  the  Court  throughout 


Introduction  3 

its  history,  together  with  its  dignity  and  learning, 
has  been  the  safeguard  against  violence  and  fac- 
tional conflict  during  several  crises  in  our  history. 
Webster's  eulogy  of  the  Court  deserves  wide 
dissemination : 

"  No  conviction  is  deeper  in  my  mind  than  that 
the  maintenance  of  the  judicial  power  is  essential 
and  indispensable  to  the  very  being  of  this  Govern- 
ment. The  Constitution,  without  it,  would  be  no 
Constitution — the  Government,  no  Government. 
I  am  deeply  sensible,  too,  and,  as  I  think,  every 
man  must  be  whose  eyes  have  been  opened  to 
what  has  passed  around  him  for  the  last  twenty 
years,  that  the  judicial  power  is  the  protecting 
power  of  the  Government.  Its  position  is  upon 
the  outer  wall.  From  the  very  nature  of  things, 
and  the  frame  of  the  Constitution,  it  forms  the 
point  at  which  our  different  systems~of  govern- 
jnent  meet  in  collision,  when  collision  unhappily 
exists.  By  the  absolute  necessity  of  the  case  the 
members  of  the  Supreme  Court  become  judges 
of  the  extent  of  constitutional  powers.  They  are, 
if  I  may  so  call  them,  the  great  arbitrators  be- 
tween contending  sovereignties.  *  -£?/**  S  3 

Horace  Binney  had  this  function  of  the  great 
Court  in  mind  when  he  characterized  it  as  "the 
great  moral  substitute  f°r  f"rrp  in  controversies 


between  the  people,  the  states,  and  the  Union." 

But  we  are  not  to  infer  that  the  members  of 
the  Supreme  Court  have  always  been  able  to  free 

1  From  a  speech  delivered  in  the  House  of  Representatives, 
January  25,  1826. 


4        Interpretation  of  Political  Theory 

themselves  from  party  conviction.  In  fact,  there 
is  ample  evidence  throughout  our  Federal  de- 
cisions that  members  of  our  Supreme  Court,  while 
not  debasing  their  decisions  with  political  doctrine, 
at  the  same  time  found  ways  to  give  force  and 
effect  to  political  theories  advocated  by  them  and 
by  their  respective  parties.  Carson  in  his  monu- 
mental work  on  the  history  of  the  Supreme  Court 
discusses  the  influence  of  party  convictions  on 
judicial  decisions  as  follows: 

"The  theories  of  the  Constitution  entertained 
by  Marshall  and  Taney  were  those  of  their  respec- 
tive parties,  and  are  irreconcilable.  Without 
imputing  to  either  a  desire  to  extend  unnecessarily 
or  immoderately  the  doctrines  of  their  schools, 
it  can  be  safely  asserted  that  although  partisan 
politics  should  have  no  place  upon  the  Bench,  yet 
it  is  impossible  to  expect  men  to  divest  themselves 
of  certain  fundamental  views  in  relation  to  the 
nature  of  our  Government  simply  because  they 
have  ascended  the  Bench  and  thrown  aside  the 
contentions  of  the  political  arena."1 

The  reason  that  personal  convictions  often 
find  expression  in  the  decisions  handed  down  from 
the  Bench  is  that  the  law  is  not  an  exact  science 
like  mathematics.  As  Herbert  Broom2  has  said: 
'^The  law,  while  it  concerns  itself  mainly  with_ 
principles,  is  not  a  fixed  science.  Its  definitions 
'are  not  fixed  and  determinate  like  those  of  ge- 
ometry, and  are  not  therefore,  and  cannot  in  the 

1  Vol.  ii.,  p.  380.  2  Philosophy  of  Law,  Preface,  p.  vi. 


Introduction  5 

nature  of  things  be,  certainly  and  positively  ex- 
pressed. A  judge  never  decides  general  principles. 
He  decides  a  case."  It  is  this  characteristic 
of  the  law  that  makes  room  for  the  traditional 
beliefs  and  personal  convictions  of  those  who 
interpret  it.  The  influence  of  these  convictions 
may  be  easily  illustrated  from  a  few  conspicuous 
examples. 

John  Marshall  was  appointed  Chief  Justice  in 
1 80 1.  He  was  a  Virginian  by  birth,  and  had  seen 
service  in  the  Revolutionary  War.  He  had  served 
as  a  member  of  the  Lower  House  in  his  native 
state,  and  had  been  a  member  of  the  Executive 
Council.  When  the  question  of  the  adoption  of 
the  Federal  Constitution  came  up,  he  was  one  of 
the  leaders  in  urging  its  adoption  by  the  people. 
He  and  Madison  were  the  great  outspoken  advo- 
cates of  the  ratification  of  the  Constitution,  and 
they  were  vigorously  opposed  by  Henry,  Mason, 
and  Grayson.  Marshall  thus  early  (1788)  ex- 
pressed his  conviction  that  under  the  proposed 
Constitution  the  Supreme  Court  had  power  to 
*  annul  an  act  of  Congress  repugnant  to  it. x  There 

1  Marshall  in  an  argument  before  the  Supreme  Court  at  Philadel- 
phia in  the  case  of  Ware  v .  Hylton,  which  involved  the  validity 
of  a  Virginia  statute,  defended  the  opposite  view.  "The  legisla- 
tive authority  of  any  country,"  said  he,  "can  only  be  restrained 
by  its  own  municipal  constitution:  this  is  a  principle  that  springs 
from  the  very  nature  of  society;  and  the  judicial  authority  can 
have  no  right  to  question  the  validity  of  law,  unless  such  a  juris- 
diction is  expressly  given  by  the  Constitution"  (see  Elliot's 
Debates,  vol.  Hi.,  p.  553).  Marshall  was  clearly  thinking  of  the 
power  of  the  Federal  Constitution  to  annul  a  state  statute.  He 


6       Interpretation  of  Political  Theory 

is  no  doubt  that  his  public  utterances  at  this  time 
shaped  his  later  course  as  Chief  Justice,  and  that 
his  great  decision  in  Marbury  v.  Madison  had  its 
origin  in  beliefs  held  by  him  before  he  was  ever 
thought  of  for  the  Supreme  Bench. 

Party  conviction  has  been  always  recognized  as 
an  essential  qualification  for  the  Supreme  Bench*1 
in  addition  to  legal  learning  and  public  service. 
The  apparent  exception  to  this  was  in  the  offer  of 
the  Chief  Justiceship  to  Patrick  Henry  by  Presi- 
dent Washington  in  the  winter  of  1795-6.  Henry 

had  not  yet  advanced  in  his  own  thinking  to  this  logical  conclu- 
sion which  he  later  was  forced  to  adopt. 

1  "Looking  back  upon  the  initial  controversy  touching  judicial 
functions  under  the  Constitution,  we  can  hardly  suppose  that 
Hamilton  did  not  perceive  that,  in  substance,  Jefferson  was  right, 
and  that  a  bench  purposely  constructed  to  pass  upon  political 
questions  must  be  politically  partisan.  He  knew  well,  if  the 
Federalists  prevailed  in  the  elections,  a  Federalist  President 
would  only  appoint  magistrates  who  could  be  relied  on  to  favor 
consolidation,  and  so  the  event  proved.  General  Washington 
chose  John  Jay  for  the  first  Chief  Justice  who  in  some  important 
respects  was  more  Federalist  than  Hamilton,  while  John  Adams 
selected  John  Marshall,  who,  though  one  of  the  greatest  jurists 
who  ever  lived,  was  hated  by  Jefferson  with  a  bitter  hatred  be- 
cause of  his  political  bias.  .  .  .  General  Jackson  appointed 
Taney  to  sustain  the  expansion  of  slavery,  and  when  the  anti- 
slavery  party  carried  the  country  with  Lincoln,  Lincoln  sup- 
planted Taney  with  Chase,  in  order  that  Chase  might  stand  by 
him  in  his  struggle  to  destroy  slavery.  And  as  it  has  been,  so 
must  it  always  be.  As  long  as  the  power  to  enact  laws  shall  hinge 
on  the  complexion  of  benches  or  judges,  so  long  will  the  ability 
to  control  a  majority  of  the  bench  be  as  crucial  a  political  necessity 
as  the  ability  to  control  a  majority  in  avowedly  representative 
assemblies." — Brooks  Adams,  The  Theory  of  Social  Revolutions 
(1913).  P-  53- 


Introduction  7 

had  been  the  ablest  and  most  influential  opponent 
of  constitutional  ratification  in  Virginia,  but  as 
Presidential  Elector  he  supported  Washington 
for  Chief  Executive,  and  in  the  meantime  he  had 
become  reconciled  to  the  provisions  of  the  Con- 
stitution. In  addition  to  this,  he  had  consistently 
from  the  first  commended  the  provisions  of  the 
Constitution  relating  to  the  judiciary.  He  even 
went  so  far  as  to  express  sympathy  for  judicial 
veto,  declaring  "it  as  the  highest  encomium  on 
this  country,  that  the  acts  of  the  legislature,  if 
unconstitutional,  are  liable  to  be  opposed  by  the 
judiciary."1  Henry's  peculiar  interest  and  ap- 
proval of  the  provisions  relating  to  the  judiciary 
were  doubtless  the  determining  factors  in  his  being 
offered  the  position  of  Chief  Justice,  and  such  quali- 
fications were  doubtless  considered  in  each  case. 
Eleven3  out  of  the  first  thirteen  justices  of  the  Su- 
preme Court  had  been  members  of  the  ratification 
conventions  in  the  several  states,  and  five3  had  been 
members  of  the  Constitutional  Convention.  Two 4 
of  these  had  declared  themselves  in  favor  of  the  ju- 
dicial veto  in  the  Federal  Convention,  and  one5 
other  had  done  so  in  the  ratification  convention  in 
his  own  state.  While  these  first  twelve  years  of  the 
Supreme  Court  were  tentative  and  incipient  in  so 
far  as  results  were  concerned,  it  is  easy  to  see  that 

1  Elliot's  Debates,  vol.  iii.,  p.  325. 

J  Jay,  Rutledge,  Wilson,  Blair,  Iredell,  Johnson,  Chase,  Ells- 
worth,  Gushing,  Washington,  and  Marshall. 

3  Rutledge,  Wilson,  Blair,  Patterson,  and  Ellsworth. 

4  Wilson  and  Ellsworth.  s  Marshall. 


8       Interpretation  of  Political  Theory 

only  ardent  supporters  of  a  strong  federal  system 
were  elevated  to  the  Bench,  and  the  unanimity 
of  opinion  in  the  early  decisions  had  here  its 
explanation. 

In  the  summer  of  1835,  after  thirty-five  years  of 
continuous  service  as  Chief  Justice, Marshall  passed 
away  at  the  advanced  age  of  fourscore  years. 
His  death  came  during  critical  times,  and  fur- 
nished the  opportunity  for  a  decided  change  in 
the  policy  of  the  Court.  His  death  left  a  Bench 
of  able  associates,  the  most  learned  being  the 
great  Justice  Story,  who  in  legal  scholarship  was 
the  equal  of  Marshall.  The  logical  thing  would 
have  been  to  elevate  him  to  the  Chief  Justiceship. 
But  Story's  promotion  was  impossible,  for  Jack- 
son was  now  serving  his  second  term  as  President, 
and  he  had  often  found  himself  in  opposition  to 
the  rulings  of  the  Court,  and  never  hesitated  to 
ignore  any  of  its  decisions  that  represented  views 
at  variance  with  his  own.  His  opportunity  had 
now  come  to  remodel  the  Court  after  his  own 
fashion,  and  the  Chief  Executive  did  not  hesitate 
to  make  use  of  the  opportunity.  Three  of  the 
five  associates — McLean,  Baldwin,  and  Wayne — 
held  commissions  signed  by  Jackson,  and  the 
resignation  of  Duval  in  1836  enabled  him  to 
appoint  Philip  P.  Barbour,  of  Virginia,  who  made 
the  fourth.  But  the  real  triumph  of  President 
Jackson  came  with  his  opportunity  to  name  a 
Chief  Justice.  He  appointed  Roger  B.  Taney  of 
Maryland.  His  political  views  and  public  conduct 


Introduction  9 

were  in  perfect  harmony  with  those  of  the  Presi- 
dent. He  had  entered  Jackson's  cabinet  as 
Attorney-General  of  the  United  States  in  1831, 
and  in  this  position  he  had  taken  a  prominent 
*j)art  in  the  Nullification  controversy,  the  opposi- 
tion to  the  re-chartering  of  the  United  States 
Bank,  the  tariff,  and  the  sub-treasury.  When  Mr. 
Duane,  the  Secretary  of  the  Treasury,  refused  to 
remove  the  Government  deposits  from  the  Bank, 
Jackson  promptly  removed  him,  and  appointed 
Taney  as  Secretary  of  the  Treasury,  a  position 
which  he  accepted,  and  his  first  official  act  was  to 
remove  the  bank  deposits.  Clay  labored  to  defeat 
the  nomination  of  Taney  for  Chief  Justice,  and 
made  a  bitter  speech  in  opposition  to  his  confir- 
mation by  the  Senate.  As  we  might  expect  with 
the  elevation  of  Taney  to  the  Chief  Justiceship 
and  the  majority  of  his  associates  appointees  of 
Jackson,  a  great  change  came  in  the  direction  and 
emphasis  of  judicial  decrees.  Larger  emphasis 
was  given  to  the  rights  of  the  states,  and  central- 
ization in  government  was  no  longer  proclaimed 
with  its  former  vigor  from  the  Supreme  Bench. 

The  influence  of  the  political  views  of  the  new 
Chief  Justice  and  his  associates,  one  of  whom  ap- 
peared on  the  Bench  with  him  for  the  first  time — 
Justice  Barbour, — was  soon  to  be  manifested  in 
judicial  opinions.  At  the  time  of  the  death  of 
Chief  Justice  Marshall  there  were  three  cases 
pending  which  involved  the  question  of  the  con- 
stitutionality of  state  laws.  These  had  been 


io      Interpretation  of  Political  Theory 

argued  before  the  Court,  and  Justice  Story  as- 
serted that  Marshall  had  expressed  the  view  that 
each  law  was  unconstitutional.  But  as  no  opinion 
had  been  handed  down  before  the  death  of  Mar- 
shall, it  became  necessary  to  re-argue  these  cases, 
and  it  was  soon  found  that  the  view  of  the  Court 
would  now  be  different. 

s        The  first  case  was  that  of  the  Mayor  of  the 
"  of  New  York  v.  Miln.1  which  involved  the 


constitutionality  of  an  act  of  the  New  York  State 
Assembly,  which  required  the  master  of  every 
vessel  arriving  in  the  port  of  New  York  to  report 
in  writing  his  passenger  list,  and  imposing  a 
penalty  for  non-compliance.  Although  it  was 
argued  that  the  statute  was  obnoxious  to  the 
Constitution  because  in  violation  of  that  provi- 
sion of  the  Constitution  that  gave  Congress  the 
power  to  regulate  commerce,  and  although  this 
view  was  supported  by  the  decisions  of  Gibbons 
v.  Ogden  and  Brown  v.  The  State  of  Maryland, 
the  state  law  was  held  by  the  majority  of  the 
Court  to  be  valid,  the  statute  being  a  mere  regula- 
tion of  police,  and  not  an  attempt  to  regulate 
commerce.  Justice  Barbour  delivered  the  opin- 
ion  of  the  Court,  and  Justice  Story  rendered  a 
dissenting  opinion,  which  up  to  this  time  had  been 
unusual  for  him. 

A  second  departure  from  the  doctrine  of  Mar- 
shall is  illustrated  in  the  case  of  "Rristne  p.  Bank 
of  the  Commonwealth  of  Kentucky.2  and  the 

1  II  Peters,  p.  102  (1837).  *  II  Peters,  p.  257  (1837). 


Introduction  n 

conclusion  of  the  Court  was  in  direct  conflict  with 
the  case  of  Craig  v.  State  of  Missouri,  a  decision 
rendered  by  Marshall  as  late  as  1830.  The  ques- 
tion came  up  over  the  validity  of  a  state  law  em- 
powering a  state  bank  to  issue  bills  to  circulate 
as  money,  and  the  question  arose  as  to  whether 
these  bills  infringed  on  that  provision  of  the  Con- 
stitution which  denied  to  the  states  the  power  to 
emit  bills  of  credit.  It  was  held  that  it  did  not, 
and  that  the  states  had  the  power  to  exercise  this 
function.  Justice  Story  again  dissented,  and 
referred  to  the  name  of  Marshall — "a  name  never 


to  be  pronounced  without  reverence" — as  having 
*  denied  that  state  institutions  had  the  power  to 

issue  bank-notes. 

/  The  third  example  is  in  the  case  of  the  Charles 
River  Bridge  v.  The  Warren  Bridge.1  a  case  that 
is  notable  from  the  fact  that  it  is  the  first  expres- 
sion of  Chief  Justice  Taney  on  a  constitutional 
question,  and  the  first  case  in  which  Daniel  Web- 
ster as  counsel  sustained  defeat  on  a  constitutional 
question  before  the  Supreme  Court.  The  facts 
are  these:  A  ferry  from  Boston  to  Charlestown  on 
the  Charles  River  had  been  authorized  by  the 
Legislature  of  Massachusetts,  and  the  tolls  were 
to  be  paid  to  the  Corporation  of  Harvard  College. 
In  1785,  the  Legislature  authorized  a  bridge  com- 
pany to  construct  a  bridge  across  the  river  which 
took  the  place  of  the  ferry,  and  the  company 
agreed  to  pay  to  Harvard  College  an  annual  rental 

1 II  Peters,  p.  420  (1837). 


12      Interpretation  of  Political  Theory 

for  a  definite  number  of  years,  after  which  the 
rental  should  cease  and  all  profits  should  go  to  the 
incorporators  of  the  bridge  company.  In  1828, 
the  Legislature  incorporated  another  company, 
known  as  the  Warren  Bridge  Company,  with 
power  to  erect  a  second  bridge  across  the  river. 
The  older  corporation  sought  an  injunction  to 
prevent  the  erection  of  the  bridge  and  the  exercise 
of  the  franchise.  The  state  court  upheld  the 
validity  of  the  law  granting  the  right  of  incorpora- 
tion to  the  Warren  Bridge  Company  and  appeal 
was  made  to  the  Supreme  Court  of  the  United 
States  on  the  ground  that  the  state  had  attempted 
to  impair  the  obligation  of  contract,  as  the  contract 
of  the  older  company  with  Harvard  College  lacked 
a  number  of  years  of  expiring.  .The  Supreme 
SCourt  sustained  the  right  of  the  stfate  to  incorpo- 


rate the  second  bridge  company.     This  was  in 


absolute  conflict  with  the  Dartmouth  College  case 


and  the  case  of  Fletcher  v.  Peck,  both  notable 


decisions  of  Marshall.     For  the  third  time,  Justice 


Story  dissented,  and  this  time  he  was  joined  by 
Justice  Thompson.  In  writing  to  a  friend  (Mr. 
Justice  McLean),  Story  in  commenting  on  this 
decision  said:  "There  will  not,  I  fear,  ever  in  our 
day  be  any  case  in  which  a  state  law  or  Act  of 
Congress  will  be  declared  unconstitutional;  for 
the  old  constitutional  doctrines  are  fast  fading 
away,  and  a  change  has  come  over  the  public 
mind  from  which  I  augur  little  good." 

The   climax  of   the    judicial    career   of  Chief 


Introduction  13 

Justice  Taney  came  with  the  Dred  Scott  decision 
which  was  handed  down  on  March  6,  1857* 
The  details  of  this  famous  case  are  too  well  known 
to  require  review  here.  This  decision  by  the 
court  of  last  resort  finally  resulted  in  an  appeal  to 


arms  which  was  destined  to  reverse  the  decree  of 


the  nation's  highest  court  of  law.     The  Civil  War 


was  now  at  hand,  and  it  is  remarkable  and  inter- 
esting that  during  the  period  covered  by  the  War 
no  echo  of  it  was  reflected  from  the  Supreme  Court. 
The  only  change  that  the  War  produced  was  in 
the  resignation  of  Justice  Campbell,  who  left  the 
Bench  to  devote  his  efforts  to  the  cause  of  the 
South. 

In  1862,  the  Prize  Cases  arose,  in  which  the 
Supreme  Court  upheld  the  President's  right  to 
institute  a  blockade.  These  decisions  were  of 
preeminent  importance  to  the  cause  of  the  North. 
The  President  had  appointed  three  new  justices — 
Swayne,  Miller,  and  Davis — whose  selection  made 
these  decisions  possible.  The  attitude  of  the 
Chief  Justice  was  clearly  indicated  by  his  decision 
from  the  Circuit  Bench  in  the  Merryman  case 
in  which  he  denied  the  right  of  President  Lincoln 
to  suspend  the  Act  of  Habeas  Corpus.  But  the 
career  of  Justice  Taney  was  about  at  an  end.  He 
was  unable  to  serve  on  the  Bench  during  1863, 
and  in  October  of  the  following  year  he  died.  On 
the  sixth  of  December,  1864,  Chase  was  appointed 
to  succeed  him. 

The  new  Chief  Justice  held  views  also  at  wide 


14      Interpretation  of  Political  Theory 

variance  to  those  of  his  predecessor.     He  held 

pronounced  views  in  opposition  to  slavery,  and 

in  1841  he  became  one  of  the  leaders  of  the  Liberty 

Party.     The  fact  that  many  of  his  acts  while 

Secretary  of  the  Treasury  during  the  early  years 

of  the  War  were  unconstitutional,  did  not  deter 

I  him  as  Chief  Justice  from  reverting  to  principles 

I  of  interpretation  established  by  Marshall.     The 

i  important  case  of  _The  State  of  Texas  v.  White  , 

(discussed   elsewhere   in   this   book)  is  sufficient 

illustration  of  the  influence  of  party  action  upon 

judicial  opinion. 

Political  influence  was  held  responsible  for  the 
reversal  by  the  Supreme  Court  of  the  decision  in 
the  case  of  JHepburn  v.  Ori.^wnld.  one  of  the  Leg^al  \ 
Tender  Cases.  ^  This  case  was  first  argued  in  1869, 
and  onl;he  seventh  of  February,  1870,  the  Court 
handed  down  its  decision  declaring  the  Legal 
Tender  acts  unconstitutional,  and_that  Congress  __ 
had  no  power  to  make  mere  promises  to  pay  dollars 
a  legal  tender  in  the  payment  of  debts.  President 
~~  Grant,  Judge  Hoar,  his  Attorney-General,  and 
many  prominent  Republicans  were  opposed  to 
the  conclusion  reached  in  this  case.  The  Court 
at  this  time  consisted  of  eight  judges,  the  Chief 
Justice  and  seven  associates.  The  Chief  Justice 
(Chase)  and  four  associates  concurred,  and  three 
dissented  from  the  opinion.  By  the  provisions 
of  an  act  of  Congress  which  took  effect  on  the 
first  Monday  in  December,  1869,  it  was  enacted 
that  "the  court  should  consist  of  a  chief  justice 


Introduction  15 

and  eight  associates,  and  that,  for  the  purpose  of 
this  act,  there  should  be  appointed  an  additional 
judge."  Justice  Grier,  who  had  voted  with  the 
majority  in  this  case,  resigned  February  I,  1870. 
President  Grant,  under  the  provisions  of  the  judi- 
ciary act  of  1869,  appointed  to  the  Supreme  Bench 
Justices  Strong  and  Bradley.  When  the  case  of 
Hepburn  v.  Griswold  came  up  for  rehearing,  both 
of  tEese  new  justices  voted  for  reversal,  which 
gave  a  majority  of  one.  The  Court  and  President 
Grant  were  severely  criticized,  but  in  later  years 
the  new  decision  has  been  more  generally  approved. 
The  Supreme  Court  remained  comparatively 
free  from  party  criticism  from  1870  to  the  time 
it  rendered  the  income  tax  decision  in  May,  1895. 
This  decision  was  arrived  at  by  a  vote  of  five  to 
four,  and  reversed  the  decision  of  1880.  The  later 
decision  was  severely  condemned  by  the  Demo- 
cratic and  the  Populist  platforms  of  1896.  The 
Supreme  Court  was  derided  as  the  ally  of  the  rich, 
and  the  defender  of  special  privilege.  There  has 
been  a  growing  tendency  since  that  time  to  criti- 
cize the  Court.  Several  reasons  account  for  this 


condition.  In  the  first  place,  the  decisions  of  the 
Court  are  so  often  rendered  by  a  divided  Court, 
often  by  a  five  to  four  vote,  and  the  diversity  of 
grounds  on  which  the  various  members  have 
reached  their  diverging  conclusions  has  suggested 
that  the  justices  are  prompted  by  party  convictions 
rather  than  established  and  infallible  guiding 
principles  of  law.  Again,  the  decisions  in  the 


16    Interpretation  of  Political  Theory 

Insular  Cases  and  the  decisions  growing  out  of  the 
Inter-State  Commerce  Act  have  carried  loose 
construction  to  its  ultimate  limit.  This  has  re- 
sulted in  wide,  popular  criticism  of  the  Court. 
The  Democratic  Platform  of  1904  criticized  the 
Court  in  this  vigorous  language:  "It  (the  Repub- 
lican party)  forced  strained  and  unnatural  con- 
structions upon  statutes"  by  virtue  of  its  control 
of  the  judiciary.  Brooks  Adams  in  his  most 
recent  book,1  offers  this  explanation  for  the  in- 
creased criticism  of  our  courts: 


"Not  only  has  constant  judicial  interference 
dislocated  scientific  legislation,   but   casting  the 
judiciary  into  the  vortex  of  civil  faction  has  de- 
graded it  in  the  popular  esteem.     In  fine,  from  the 
outset,  the  American  bench,  because  it  deals  with 
the  most  fiercely  contested  of  political  issues,  has 
,  been  an  instrument  necessary  to  political  success, 
r  Consequently,   political  parties  have   striven   to 
1  control  it,  and  therefore  the  bench  has  always  had 
\an  avowed  partisan  bias.     This  avowed  political 
or  social  bias,  has,  I  infer,  bred  among  the  Ameri- 
can people  the  conviction  that  justice  is  not  ad- 
ministered indifferently  to  all  men,  wherefore  the 
bench  is  not  respected  with  us  as,  for  instance, 
it  is  in  Great  Britain,  where  law  and  politics  are 
sundered.     Nor  has  the  dissatisfaction  engendered 
by  these  causes  been   concealed.     On  the   con- 
trary, it  has  found  expression  through  a  series  of 
famous  popular  leaders   from  Thomas  Jefferson 
to  Theodore  Roosevelt." 

1  Theory  of  Social  Revolutions  (1913),  p.  47. 


Introduction  17 

The  climax  of  opposition  to  the  courts  came  in 
1912,  when  the  recall  of  judicial  decisions1  became 
a  national  issue.  This  theory  may  be  said  to  be 
the  direct  result  of  opposition  to  the  doctrine  that 
the  courts  have  the  power  to  declare  a  statute 
unconstitutional,  a  doctrine  that  has  been  upheld 
by  the  courts  even  from  Colonial  days,  and  was 
early  accepted  by  the  Supreme  Court.  The 
history  of  this  doctrine  will  be  traced  in  the 
following  chapter,  as  it  is  fundamental  to  the 
later  chapters  of  the  book. 

1  This  theory  is  discussed  in  Chapter  viii. 


CHAPTER  I 

JUDICIAL   POWER   OVER   LEGISLATIVE   ENACTMENTS 


unique  characteristic  of  the  judicial 
1  department  of  the  United  States  Govern- 
ment and  the  provision  of  the  United  States 
Constitution  which  more  than  any  other  has 
attracted  attention  among  foreign  students  of 
political  science,  is  the  inherent  power  of  the 
Federal  judiciary  to  declare  unconstitutional  the 
enactments  of  the  legislative  branch  of  our  Govern- 
ment. Much  has  been  written  on  the  sources 
of  the  Constitution  of  the  United  States.  One 
author  declares  that  "The  lessons  and  experiences 
of  four  continents  and  thirty  centuries  lent  their 
aid  to  the  formation  of  our  Federal  Constitution."  * 
But  the  power  to  declare  a  statute  of  a  sovereign 
legislative  body  null  and  void  has  never  been 
possessed  by  the  courts  of  any  European  Govern- 
ment, and  it  is  therefore  an  original  feature  in  our 
judicial  system.  "This  entrusting  to  the  judi- 
ciary the  whole  interpretation  of  the  fundamental 
instrument  of  government,"  says  Fiske,  "is  the 
most  peculiarly  American  feature  of  the  work 
done  by  the  convention,  and  to  the  stability  of 

1  Putney  on  Constitutional  Law,  p.  103. 
18 


Judicial  Power  over  Legislative  Acts  19 

such  a  federation  as  ours,  covering  as  it  does  the 
greater  part  of  a  huge  continent,  it  was  absolutely 
indispensable."1  A  consideration  of  this  unique 
judicial  power  is  fundamental  to  a  discussion  of 
the  relation  of  the  judiciary  to  political  theory, 
for  the  effectiveness  of  political  theory  can  only 
be  made  possible  when  it  finds  expression  in  legis- 
lative enactments,  and,  as  it  is  the  function  of  the 
courts  to  review  the  constitutionality  of  these 
legislative  enactments,  indirectly  the  judiciary 
passes  upon  political  theory.  It  is  for  this  reason 
that  the  courts  under  our  Federal  system  have 
become  the  subject  themselves,  from  time  to  time, 
of  political  debate  and  the  center  of  party  contro- 
versy. But  it  should  be  stated  in  the  beginning 
that  the  courts  have  remained  strikingly  free  from 
partisanship.  However,  it  cannot  be  denied  that 
the  members  of  the  Supreme  Court  have  been 
more  or  less  swayed  by  political  opinion  and  party 
belief,  and  these  opinions  have  to  some  extent,  at 
least,  been  reflected  in  the  opinions  rendered  from 
the  Bench. 

Judicial  power  to  interpret  political  theory  is  a 
latent  force  until  the  theory  is  enacted  into  law, 
and  the  law  invoked  as  a  means  of  remedial  justice. 
Generally  speaking,  every  law  that  is  the  result 
of  a  political  issue  before  the  people,  previous  to, 
or  at  the  time  of,  its  enactment,  becomes,  sooner 
or  later,  in  some  form  a  subject  for  judicial  review. 
This  process  is  becoming  more  and  more  the  man- 

1  Fiske,  The  Critical  Period  of  American  History,  p.  301. 


20    Interpretation  of  Political  Theory 

ner  in  which  the  party  opposing  the  issue  tests  the 
soundness  of  the  principle  underlying  it,  and  the 
degree  to  which  the  law  conforms  to  the  issue. 
The  judiciary  may  assume  three  attitudes  toward 
a  statute:  First,  it  may  simply  make  a  remark 
about  a  law  without  supporting  or  condemning  it 
in  any  way.  It  is  not  always  necessary  for  an 
appellate  court  or  a  court  of  last  resort  to  pass 
upon  the  merits  of  a  law,  appeals  often  being 
taken  upon  other  grounds;  and  it  has  been  the 
usual  policy  of  the  courts  to  adhere  to  this  policy. 
The  most  violent  criticism  offered  to  the  Dred 
Scott  decision  was  that  in  passing  upon  the  merits 
of  the  Missouri  Compromise  the  Court  was  passing 
upon  a  question  not  properly  before  the  Court. 
Secondly,  it  may  be  to  maintain  the  constitu- 
tionality of  the  law,  in  which  case  it  usually  be- 
comes the  settled  policy  of  the  land,  subject, 
of  course,  to  modification  or  extension,  within 
definite  constitutional  limits,  by  Congress.  The 
most  prominent  exception  was  the  Missouri 


Compromise,    in   which    the   people   refused    to 


accept  the  verdict  of  the  Supreme  Court. The 


third  attitude  may  be  that  of  declaring  the  statute 
unconstitutional  and  thereby  reversing  the  theory 
on  which  the  law  was  based,  annulling  a  cherished 
view  of  the  majority,  and  supporting  the  wisdom 
of  the  minority.  This  is  such  a  remarkable  power 
and  so  unusual  in  governmental  science  as  to 
merit  a  rather  extended  discussion  as  to  its  history, 
extent,  and  limitation  in  our  country. 


Judicial  Power  over  Legislative  Acts  21 

The  two  great  law  systems  from  which  we  have 
drawn  most  largely  never  recognized  this  power 
in  their  courts.  This  statement  has  been  par- 
tially denied  by  one  or  two  authorities.  In  the 
very  scholarly  work  of  Brinton  Coxe1  it  is  main- 
tained that  there  were  probably  three  doctrines  in 
/the  civil  law  of  Rome  on  which  this  American  ju- 
dicial theory  might  be  based.  He  held  that  "Jus 
Legum"  was  considered  the  fundamental  act  in 
organic  law,  an  example  of  which  was  the  Cascilia 
et  Didia,  which  was  a  law  that  prohibited  the 
proposal  of  any  enactment  which  contained  unre- 
lated provisions,  the  design  of  which  was  to  pre- 
vent omnibus  legislation  and  had  for  its  purpose 
the  prevention  of  a  statute  having  more  than  one 
subject.  Mr.  Coxe  cites  as  a  concrete  example  a 
reference  in  one  of  the  orations  of  Cicero  concern- 
ing: Clodius,  in  which  he  proclaims  to  his  hearers 


that  the  Senate  had  annulled  the  laws  of  Marcus 
Drusus  because  they  had  violated  this  rule.     An- 


other  instance  cited  by  this  learned  author,  in 
substantiation  of  his  theory,  was  certain  provisions 
of  the  code  of  Justinian,  in  which  he  claimed  that 
the  judges  were  enjoined  to  treat  as  invalid  a 
rescript  of  the  Emperor,  which  was  contrary  to 
established  law,  or  that  had  been  illegally  obtained. 
The  third  provision  referred  to  mandates,  or 
power  of  attorney,  in  cases  where  an  agent  ex- 
ceeded his  authority,  all  such  being  without  effect 

Judicial  Power  and  Unconstitutional  Legislation,  or  Appendix 
,  p.  323  of  Howe's  Studies  in  the  Civil  Law. 


22    Interpretation  of  Political  Theory 

and  void.  But  the  student  who  investigates  the 
passages  referred  to  by  Mr.  Coxe  is  forced  to 
believe  that  his  theory  is  based  on  slim  founda- 
tions and  that  his  view  is  entirely  erroneous.  It 
is  easy  to  determine  the  Roman  doctrine  from 
Lex  Siete  Partidas,  which  is  the  most  important 
code  of  the  Middle  Ages,  and  a  direct  descendant 
of  the  civil  law  of  Rome:  "When  doubts  arise 
concerning  the  meaning  of  law,  whether  from  an 
error  in  committing  it  to  writing,  or  from  the 
obscurity  of  the  expressions  made  use  of  by  the 
legislators,  it  belongs  to  the  legislature  alone  to  ex- 
plain such  doubts."1 

Under  the  Roman  law  system  the  pontiffs  inter- 
preted the  law  and  applied  it  to  special  conditions, 
but  they  had  no  power  to  annul  the  decrees  of  the 
Senate.  When  the  Twelve  Tables  became  the  foun- 
dation of  Roman  law,  the  pontiffs  still  continued  to 
be  for  a  long  period  the  only  judges,  but  under 
these  laws  they  were  restricted  to  their  provisions. 
When  the  office  of  praetor  was  created  in  366  B.C. 
to  interpret  the  law,  no  power  was  given  to  them 
to  annul  the  decrees  of  the  Senate,  of  the  comitia 
centuriata,  or  the  Emperor,  the  respective  domi- 
nating sources  of  law  in  the  future  history  of 
Rome.  The  question  of  the  power  of  the  pontiffs 
and  pra3tors  to  annul  established  law  seems  never 
to  have  been  seriously  considered  by  the  Roman 
jurisprudents.  This  may  have  been  largely  due 
to  the  fact  that  Roman  legislation  was  principally 

1  Lex  Siete  Partidas,  Partido  I.,  Title  L.,  Law  14. 


Judicial  Power  over  Legislative  Acts  23 

concerned  with  substantive  law,  leaving  the  ad- 
jective law  to  the  praetors,  who  were  entirely 
responsible  for  the  formulary  system.  During 
the  best  days  of  the  Empire,  imperial  legislation 
was  somewhat  influenced  by  the  jurisconsults, 
who  were  the  literary  and  phiJQsnpViin  lawyers  of 
their  times,  and  as  a  result  of  their  learning,  they 
were  often  consulted  by  the  Emperor;  but  after  a 
decree  had  been  issued  it  passed  beyond  the  con- 
trol of  any  governmental  agency  except  that  of 
the  Emperor  himself. 

In  England,  as  in  early  Rome,  the  earliest  legis- 
lation was  merely  a  royal  decree,  and  the  King 
being  a  legislative  and  judicial  officer  as  well  as 
the  executive,  there  could  be  no  conflict  of  author- 
ity. But  in  England  the  supremacy  of  the  legis- 
lative act  was  recognized  as  soon  as  there  was  a 
shadow  of  a  legislative  body.  Stubbs  says:1 

"The  legislative  functions  of  the  national  council 
are,  under  the  Norman  kings,  rather  nominal 
than  real.  But  the  form  of  participation  is  re- 
tained; it  is  still  with  the  counsel  and  consent  of 
his  faithful  that  Henry  the  First  amends,  as  his 
father  had  done,  the  old  laws.  This  immemorial 
counsel  and  consent  descends  from  the  earliest 
Teutonic  legislation,  and  is  preserved  to  our  day, 
a  standing  and  perpetual  protest  against  the 
imperial  doctrine  favored  by  the  lawyers  and 
founded  on  the  devolution  of  all  legislative  power 
on  the  King — Quod  principi  placuit  legis  habet 
vigor  em." 

1  Select  Charters,  p.  17. 


24    Interpretation  of  Political  Theory 

The  Revolution  of  1688  effectively  transferred 
the  principle  of  sovereignty  from  the  King  to 
Parliament.  This  transfer  was  the  historical  out- 
growth of  the  increasing  exercise  of  legislative 
power  in  a  country  without  a  written  constitution. 
Even  the  source  of  power  in  Parliament  has 
shifted  in  the  course  of  history.  The  Lords,  who 
were  the  natural  successors  of  the  great  council,  be- 
came the  Parliament,  and  exercised  supreme  power 
for  a  time. x  The  elective  assembly  finally  gained 
supremacy,  and  assumed  supreme  sovereignty. 
Bagehot2  tells  us  that  not  only  is  the  supreme  au- 
thority under  the  English  Constitution  vested  in 
the  House  of  Commons,  but  more  particularly  in 
each  succeeding  newly-elected  House  of  Commons. 

Blackstone, 3  writing  of  a  later  period,  has  more 
positively  declared  the  English  doctrine  as  follows : 

"An  act  of  Parliament  is  the  exercise  of  the 
highest  authority  that  this  kingdom  acknowl- 
edges upon  earth.  It  has  power  to  bind  every 
subject  of  the  land  and  the  dominions  there- 
unto belonging;  nay,  even  the  King  himself,  if 
particularly  named  therein.  And  it  cannot  be 
altered,  amended,  dispensed  with,  suspended,  or 
repealed  but  in  the  same  forms  and  by  the  same 
authority  of  Parliament." 

A  few  ineffectual  attempts  have  been  made 
by  the  English  judiciary  to  modify  this  doctrine. 

1  Hume's  History  of  England,  vol.  i.,  p.  453. 

'The  English  Constitution,  p.  295.  *  Vol.  i.,  pp.  185-6. 


Judicial  Power  over  Legislative  Acts  25 

Mr.  Coxe  contends  that  there  were  in  England, 
prior  to  1688,  a  few  cases  where  the  judges  seemed 
to  believe  themselves  possessed  with  power  to 
annul  the  acts  of  Parliament.  He  claims  that 
in  Rous  v.  An  Abbott,  27  Henry  VI.,  a  statute  was 
held  void.  He  claims  also  that  in  Prior  of  Cast- 
laker  v.  Dean,  21  Henry  VII.,  where  an  act  of 
Parliament  was  designed  to  make  a  king  a  parson, 
the  act  was  held  to  be  void,  because  in  violation 
of  the  cannon  law  which  was  regarded  as  a 
part  of  the  English  Constitution.  Again  in  the 
case  of  Godden  v.  Hales,  the  King's  Bench  in 
1788  held  that  certain  provisions  in  the  statute 
of  25  Charles  II.,  chap.  2,  were  null  and  void, 
because  they  infringed  upon  a  prerogative  of 
the  King  which  was  constitutional.  It  is 
thought  by  the  learned  author  who  cites  these 
cases  that  this  was  an  attempt  to  adopt  into 
the  English  law  system  the  fragments  of  the 
doctrine  which  he  claimed  to  find  in  the 
civil  law  system.  But  probably,  if  the  English 
judges  ever  conceived  that  they  had  the 
power  to  annul  statute  of  Parliament,  their 
belief  grew  out  of  their  great  respect  for  the 
common  law  rather  than  from  any  analogy  they 
might  have  discovered  in  the  Roman  system. 
So  great  a  judge  as  Lord  Coke,  out  of  de- 
ference to  the  common  law,  asserted  that  those 
acts  of  Parliament  contrary  to  reason  should 
be  subservient  to  the  common  law.  Coke 
says: 


26    Interpretation  of  Political  Theory 

"And  it  appears  in  our  books  that  in  many 
cases  the  common  law  will  control  acts  of  par- 
liament, and  sometimes  adjudge  them  to  be 
utterly  void;  for  when  an  act  of  parliament  is 
against  the  common  right  or  reason  and  repugnant 
or  impossible  to  be  performed,  the  common  law 
will  control  it  and  adjudge  such  act  to  be  void."1 

However,   this  natural  justice  theory    of    Coke 
never  took  deep  root  in  English  judicial  soil. 

In  France  it  seems  that  legislative  supremacy 
was  one  of  the  products  of  the  French  Revolution. 
The  assembling  of  the  States  General  in  May, 
1789,  gave  an  opportunity  for  the  Third  Estate 
to  gain  control  of  the  legislative  machinery,  and 
they  assumed  as  their  primary  business  the  making 
of  a  new  constitution  after  organizing  themselves 
into  the  National  Assembly.  These  men  had 
experienced  hardships  because  of  an  absolute 
executive,  and  it  was  but  natural  that  this  body 
would  make  the  legislative  branch  of  the  Govern- 
ment superior  to  the  executive  branch,  and  to 
make  this  superiority  doubly  sure  it  was  but 
natural  that  they  should  also  provide  that  the 
legislature  should  not  have  its  decrees  suspended 
or  annulled  by  the  courts.  The  Constituent  As- 
sembly, therefore,  provided  that  "the  tribunals 
shall  not  participate  directly  or  indirectly  in  the 
exercise  of  the  legislative  power,  nor  interfere 
with  or  suspend  the  execution  of  the  decrees  of 
the  legislative  body  sanctioned  by  the  king  under 

tBonham's  Case,  4th  Rep.;  Part  viii.,  p.  234. 


Judicial  Power  over  Legislative  Acts  27 

pain  of  forfeiture  of  their  offices."  This  prin- 
ciple has  been  strictly  adhered  to  in  France  to 
the  present  day.  Dicey r  says  that 

"Any  one  who  bears  in  mind  the  respect  paid  in 
France  from  the  time  of  the  Revolution  onwards 
to  the  legislation  of  de  facto  governments  and  the 
traditions  of  the  French  judicature  will  assume 
with  confidence  that  an  enactment  passed  through 
the  Chambers,  promulgated  by  the  President,  and 
published  in  the  Bulletin  des  Lois  will  be  held  valid 
by  every  tribunal  throughout  the  republic." 

The  American  doctrine  has  never  been  recog- 
nized in  the  German  Empire.  In  Germany,  the 
courts  .are  required  to  enforce  without  question 
the  legislative  will,  repugnancy  to  the  constitution 
offers  no  excuse  to  do  otherwise.  The  German 
theory  is  expressed  by  Garner*  as  follows: 

"  It  is  not  their  (the  court's)  right  to  assume  that 
the  Legislature,  intentionally  or  unwittingly,  has 
exceeded  its  powers ;  not  their  prerogative  to  set 
aside  as  invalid  what  has  been  enacted,  presum- 
ably after  careful  deliberation  and  with  full  knowl- 
edge of  its  own  constitutional  powers." 

The  other  nations  of  Europe  subscribe  to  the 
doctrine  of  legislative  supremacy.  Belgium,  Italy, 
and  Spain  have  followed  the  example  of  France. 
The  Constitution  of  the  Confederacy  of  Switzer- 

1  Law  of  the  Constitution,  p.  122  (Second  Edition). 
1  Introduction  to  Political  Science,  p.  597. 


28    Interpretation  of  Political  Theory 

land  makes  it  mandatory  upon  the  part  of  the 
courts  to  give  full  force  and  effect  to  every  law 
enacted  by  the  Federal  Assembly.  So,  we  may 
call  this  a  European  doctrine  as  distinguished  from 
the  American  doctrine  that  the  courts  have  the 
power  to  annul  an  enactment  of  the  Legislature 
deemed  by  them  to  be  repugnant  to  some  provi- 
sion of  the  Constitution. 

"In  Europe,"  says  Esmein, 1  "and  especially 
under  the  regime  of  imperative  and  written  consti- 
tutions, the  idea  is  well  established  that  the 
tribunals  have  no  right  to  pass  upon  the  constitu- 
tionality of  the  laws.  When  regularly  enacted  they 
are  binding  upon  the  courts,  and  they  have  only 
the  right  to  apply  them,  not  to  judge  of  their 
validity." 

In  striking  contrast  with  European  practice, 

.  the  American  courts  began  at  a  very  early  date 

I  to  exercise  the  authority  of  declaring  statute  laws 

1  unconstitutional  when  it  was  believed  that  such 

l^law  contravened  the  Constitution.     It  is  natural 

to  seek  the  source  of  such  a  practice.     As  we  have 

seen,  a  precedent  could  scarcely  be  found  in  the 

practices   of   any  European  country.     However, 

there  may  have  been  the  seed  of  suggestion  in  the 

decisions  of  the  English  courts  referred  to  above, 

and  they  doubtless  did  find  judicial  soil  in  which 

to  grow  in  the  early  days  of  our  colonial  history. 

1  Droit  Constitution,  p.  431.  Also  quoted  by  Garner  in  Intro- 
duction to  Political  Science,  p.  597. 


Judicial  Power  over  Legislative  Acts  29 

For  in  the  colonies  appeal  was  often  taken  to  the 
King,  and  the  English  courts  frequently  annulled 
acts  of  the  colonial  legislatures  on  the  ground  that 
they  exceeded  the  authority  granted  to  them  in 
the  colonial  charter.  It  was  doubtless  in  this 
way  that  the  judicial  power  to  declare  legislative 
acts  unconstitutional  gradually  grew  up  in  our 
governmental  system.  No  colonial  charter  ever 
expressly  delegated  this  power  to  the  courts. 
This  doctrine  has  never  been  incorporated  in  the 
Constitution  of  the  United  States,  or  in  any  of 
the  constitutions  of  the  states  of  the  American 
Union.  The  acceptance  of  this  all-important 
generalization  is  the  result  of  its  consistent  and 
frequent  reaffirmation  by  the  courts  through  a 
long  period  of  time. 

The  earliest  case  we  have  which  supported  this 
doctrine  was  that  of  Robin  v.  Hardaway,1  a 
Virginia  case,  decided  in  1772.  This  was  an 
action  brought  by  the  descendants  of  an  enslaved 
Indian  woman,  in  which  they  sought  to  secure 
their  freedom.  They  contended  that  the  enabling 
statute  under  which  they  were  deprived  of  their 
freedom  was  invalid,  because  it  was  contrary  to 
natural  right  and  justice.  The  plaintiff's  counsel, 
George  Mason,  cited  Lord  Coke  and  other  author- 
ities in  support  of  the  following  declaration : 

"Now,  all  acts  of  the  Legislature  apparently  con- 
trary to  natural  right  and  justice  are,  in  our  laws, 

1  Jeff.  109. 


30    Interpretation  of  Political  Theory 

and  must  be  in  the  nature  of  things,  considered 
void.  The  laws  of  nature  are  the  laws  of  God, 
whose  authority  can  be  superseded  by  no  power  on 
earth.  A  Legislature  must  not  obstruct  our  obedi- 
ence to  Him  from  whose  punishment  they  cannot 
protect  us.  All  human  constitutions  which  contra- 
dict His  laws  we  are  in  conscience  bound  to 
disobey." 

This  case  was  decided  on  other  grounds,  and 
the  Court  did  not  deem  it  necessary  to  discuss  this 
point.  But  we  have  revealed  here  the  trans- 
planted doctrine  of  Lord  Coke,  which  was  destined 
in  the  course  of  our  history  to  show  much  vitality. 
However,  it  was  not  to  develop  from  the  broad 
premise  announced  here,  but  on  the  more  re- 
stricted ground  of  the  limitation  of  powers  given 
to  our  Federal  Legislature  by  the  Constitution. 

Ten  years  after  the  argument  in  the  case  cited 
above,  the  remarkable  decision  in  the  case  of 
Commonwealth  v.  Caton  was  rendered.  This 
was  also  a  Virginia  case.  Two  questions  were  at 
issue,  as  follows:  (i)  Whether  under  the  constitu- 
tion of  Virginia  the  house  of  burgesses  could 
legally  grant  a  pardon  for  treason;  (2)  Whether 
the  definition  of  treason  in  an  act  of  1776,  and 
under  which  a  number  of  convictions  was  secured, 
was  in  violation  of  the  state  constitution.  It 
happened  that  the  decision  did  not  turn  upon  the 
constitutionality  of  the  act,  and,  therefore,  the 
remarks  of  the  judges  are  merely  obiter  dicta. 
However,  the  expressions  used  are  the  first  to  be 


Judicial  Power  over  Legislative  Acts  31 

found  relating  directly  to  the  subject.  Judge 
Wythe,  in  asserting  the  controlling  powers  of  the 
courts  and  after  reviewing  the  circumstances  of 
the  case,  declared  that  he  would  feel  it  to  be  his 
duty  to  prevent  the  usurpations  by  one  branch 
of  the  Legislature  of  rights  belonging  to  the  other, 
and  concluded  with  this  remarkable  language: 

"  Nay,  more,  if  the  whole  Legislature — an  event 
to  be  deprecated — should  attempt  to  overleap 
the  boundaries  prescribed  to  them  by  the  people, 
I,  in  administering  the  justice  of  the  country,  will 
meet  the  united  powers  at  my  seat  in  this  tribunal, 
and  pointing  to  the  Constitution,  will  say  to  them, 
'  Here  is  the  limit  of  your  authority ;  hither  shall 
you  go,  but  no  further.' ' 

Judge  Pendleton,  the  President  of  the  Court, 
refrained  from  expressing  a  direct  opinion,  but 
his  remarks  are  significant. 

"  But  how  far  this  Court  in  whom  the  judiciary 
powers  may,  in  some  sort,  be  said  to  be  concen- 
trated, shall  have  power  to  declare  the  nullity  of  a 
law  passed  in  its  forms  by  the  legislative  power, 
without  exercising  the  power  of  that  branch 
contrary  to  the  plain  terms  of  the  Constitution, 
is  indeed  a  deep,  important,  and,  I  will  add,  tre- 
mendous question,  the  decision  of  which  might 
involve  consequences  to  which  gentlemen  may 
not  have  extended  their  ideas."1 

1  See  Carson's,  The  History  of  the  Supreme  Court  of  the  United 
States,  vol.  i.,  p.  121 ;  also  Reives'  Life  of  Madison,  vol.  ii.,  p.  262 
et  seq. 


32    Interpretation  of  Political  Theory 

It  was  the  opinion  of  the  other  judges,  including 
Chancellor  Blair,  so  we  are  told,  that  the  Court 
possessed  the  power  to  annul  a  resolution  or 
an  act  of  the  Legislature  if  in  conflict  with  the 
Constitution. 

It  must  not  be  inferred  that  this  doctrine  was 
always  accepted  without  protest  on  the  part  of 
the  people  of  the  colonies.  In  some  of  the  colonies, 
it  is  true,  the  doctrine  came  in  so  gradually  and 
was  announced  in  connection  with  matters  of 
such  small  commercial  importance  as  to  arouse 
but  little  comment  or  antagonism.  But  the  op- 
posite effect  was  also  produced.  Bryce1  cites  a 
case  in  point: 

"  In  1786  the  Supreme  Court  of  Rhode  Island  de- 
cided that  an  act  passed  by  the  Legislature  was  un- 
constitutional because  it  contravened  the  provision 
of  the  colonial  charter  (which  was  still  the  con- 
stitution of  the  state),  securing  to  every  accused 
person  the  benefit  of  a  trial  by  jury.  The  Legis- 
lature was  furious  and  proceeded  to  impeach  the 
judges  for  disobeying  their  will.  The  impeach- 
ment failed,  but  the  judges  were  not  reflected  by 
the  Legislature  when  their  term  of  office  expired." 

The  agitation  of  this  question  in  some  of  the 
colonies  just  before  the  Federal  convention  met 
caused  discussion  in  the  convention  as  to  the  ad- 
visability of  giving  the  Federal  judiciary  power 
to  annul  acts  of  Congress  which  were  deemed  re- 
pugnant to  the  Constitution.  Charles  Pinckney 

f  The  American  Commonwealth,  vol.  i.f  p.  533. 


Judicial  Power  over  Legislative  Acts  33 

opposed  giving  the  judges  this  power,  because, 
by  the  very  nature  of  our  Government,  the  judges 
would  be  involved  in  party  conflicts  before  coming 
to  the  Bench,  and  their  political  views  would  tinge 
their  decisions  later  in  court.  "The  judiciary," 
said  John  Francis  Mercer,  of  Maryland,  "ought 
to  be  separate  from  the  legislature  and  independent 
of  it.  I  disapprove  the  doctrine  that  the  judges 
should,  as  expositors  of  the  Constitution,  have 
authority  to  declare  a  law  void.  Laws  ought  to 
be  well  and  cautiously  made,  and  then  to  be 
uncontrollable."1  This  was  part  of  the  Anti- 
Federalist  argument  used  against  the  adoption 
of  the  Constitution  by  the  States.  Against  this 
view  was  that  of  Hamilton  and  Marshall.  Hamil- 
ton thought  the  people  needed  to  give  the  courts 
such  a  power  to  protect  them  from  obscure  or 
equivocal  laws,  "for,"  said  he,  "all  new  laws, 
though  penned  with  the  greatest  technical  skill, 
and  passed  on  the  fullest  and  most  mature  delib- 
eration, are  considered  more  or  less  obscure  and 
equivocal  until  their  meaning  be  liquidated  and 
ascertained  by  a  series  of  particular  discussions 
and  adjudications."2  Again  Hamilton  says: 

"  There  is  no  position  which  depends  on  clearer 
I  principles,  than  that  every  act  of  a  delegated 
1  authority,  contrary  to  the  tenor  of  the  commission 
lunder  which  it  is  exercised,  is  void.  No  legis- 

1  See  on  this  point  Bancroft's  History  of  the  Constitution  of  the 
United  States,  p.  349. 
3  Federalist  Paper,  No.  36  (Dawson's  Edition). 

3 


34    Interpretation  of  Political  Theory 

lative  act,  therefore,  contrary  to  the  Constitution, 
can  be  valid.  To  deny  this,  would  be  to  affirm 
that  the  deputy  is  greater  than  his  principal;  that 
the  servant  is  above  his  master;  that  the  repre- 
sentatives of  the  people  are  superior  to  the  people 
themselves;  that  men  acting  by  virtue  of  powers, 
may  do  not  only  what  their  powers  do  not  author- 
,  ize,  but  what  they  forbid.  .  .  .  The  interpreta- 
1  tion  of  the  laws  is  the  proper  and  peculiar  province 
\of  the  courts.  A  Constitution  is,  in  fact,  and 
\must  be  regarded  by  the  judges,  as  a  fundamental 
Vaw.  It  therefore  belongs  to  them  to  ascertain 
its  meaning,  as  well  as  the  meaning  of  any  par- 
ticular act  proceeding  from  the  legislative  body. 
If  there  should  happen  to  be  an  irreconcilable 
variance  between  the  two,  that  which  has  the 
superior  obligation  and  validity  ought,  of  course, 
to  be  preferred;  or  in  other  words,  the  Constitu- 
tion ought  to  be  preferred  to  the  statute.;  the 
intention  of  the  people  to  the  intention  of  their 
agents."1 

It  was  thought  by  this  means  legislation  could 
be  kept  within  the  bounds  of  the  Constitution. 
Marshall  emphasized  this  point  in  his  defense  of 
the.  Constitution  before  the  Virginia  convention, 
on  June  10,  1788.  He  said: 

"If  they  (Congress)  were  to  make  a  law  not  war- 
ranted by  any  of  the  powers  enumerated,  it  would 
be  considered  by  the  judges  as  an  infringement  of 
the  Constitution  which  they  are  to  guard.  They 
would  not  consider  such  a  law  as  coming  under 
their  jurisdiction.  They  would  declare  it  void." 
1  Federalist  Paper,  No.  78  (Dawson's  Edition). 


Judicial  Power  over  Legislative  Acts  35 

The  Constitution  does  not  expressly  give  to  the 
courts  the  power  to  declare  statutes  unconstitu- 
tional; but  the  defenders  of  the  Constitution, 
before  its  ratification,  seem  to  have  assumed  that 
such  a  power  was  given  from  the  wording  of 
Article  III.,  section  2. 

The  first  of  a  large  number  of  decisions  asserting 
the  power  of  the  state  courts  to  declare  a  statute 
void  because  in  conflict  with  the  Constitution  of 
the  United  States  was  that  of  Holmes  v.  Walton, 
a  New  Jersey  case,  and  decided  by  the  Su- 
preme Court  of  that  State.  The  statute  in  con- 
troversy declared  that  under  the  seizure  laws  trial 
should  be  by  a  jury  consisting  of  six  men,  and 
objection  was  made  that  this  was  not  a  constitu- 
tional jury.  The  Court  took  this  view  of  the 
question  and  held  the  statute  to  be  void.  A  little 
later,  another  statute  was  held  to  be  unconstitu- 
tional, in  the  same  State,  because  held  to  be  ex 
post  facto  and  therefore  in  conflict  with  the  Con- 
stitution of  the  United  States.  It  seems  that 
these  decisions  met  with  no  opposition  from  the 
Legislature  or  the  people,  for  the  Legislature 
promptly  accepted  the  views  of  the  Court  in  the 
first  case,  and  changed  the  statute  so  as  to  pro- 
vide for  a  jury  of  twelve  men  instead  of  six. 
The  power  of  the  state  judiciary  to  measure 
state  statutes  by  the  Federal  Constitution  was 
not  destined  to  be  accepted  in  all  the  states 
with  the  equanimity  that  characterized  the  enun- 
ciation of  the  doctrine  in  New  Jersey.  In  the 


36    Interpretation  of  Political  Theory 

states  of  Ohio,  Kentucky,  and  Pennsylvania  the 
doctrine  was  contested  with  much  vigor.  Cooley x 
cites  an  Ohio  instance  in  1807  where  impeachment 
proceedings  were  instituted  against  the  judges 
who  upheld  the  doctrine,  but  without  effecting 
their  removal  from  office.  The  people  of  Ohio 
seem  to  have  accepted  the  doctrine  after  the  fail- 
ure to  remove  the  judges  from  office,  for,  in  1829, 
the  Supreme  Court  of  Ohio  reiterated  the  doctrine 
in  the  case  of  Jordon  v.  Dayton.2  At  this  time 
no  opposition  was  raised  and  it  is  presumed  that 
it  had  been  generally  acceded  to  by  the  people. 
In  Kentucky  the  affirmation  of  this  doctrine  re- 
sulted in  a  bitter  political  contest.  One  faction 
was  called  the  "Old  Court,"  and  the  other  t% 
''New  Court,"  faction.  The  "New  Court,"  fac- 
tion was  fighting  the  recognition  of  the  doctrine; 
while  the  "Old  Court,"  was  supporting  it.  The 
latter  faction  was  finally  sustained  by  the  people 
and  the  Court  decision  which  they  had  made  an 
issue  was  given  recognition. 

The  Federal  courts  were  not  long  in  asserting 
the  doctrine.  The  first  case  involving  the  doctrine 
grew  out  of  a  statute  passed  by  Congress  and  con- 
sidered in  March,  1792.  This  statute  provided 
for  adjusting  the  claims  of  widows  and  orphans 
barred  by  limitation  previously  established,  and 
regulating  the  claims  to  invalid  pensions.  United 
States  courts  were  directed  to  pass  upon  the 

1  Constitutional  Limitations,  p.  193  (Sixth  Edition). 
»  4  Ohio,  p.  294. 


Judicial  Power  over  Legislative  Acts  37 

claims  subject  to  the  review  and  approval  of  the 
Secretary  of  War  as  well  as  by  Congress. 

The  statute  was  reviewed  by  the  Circuit  Court 
for  the  District  of  New  York,  over  which  Justice 
Jay  presided.  The  part  of  the  opinion  in  point 
reads  as  follows: 

"The  duties  assigned  to  the  Circuit  Court  by 
this  act  are  not  judicial  insomuch  as  it  subjects  the 
decision  of  these  courts,  made  pursuant  to  those 
duties,  first  to  the  consideration  and  supervision 
of  the  Secretary  of  War,  and  then  to  the  revision 
of  the  legislature;  whereas  by  the  Constitution, 
neither  the  Secretary  of  War,  nor  any  other  exe- 
cutive officer,  nor  even  the  legislature  are  author- 
ized to  sit  as  a  court  of  errors  on  the  judicial  acts 
or  the  opinions  of  this  court.  But,  as  the  objects 
of  this  act  are  exceedingly  benevolent  and  do  real 
honor  to  the  humanity  and  justice  of  Congress; 
and  as  the  judges  desire  to  manifest  on  all  proper 
occasions  and  in  every  proper  way,  their  high 
respect  for  the  National  Legislature,  they  will 
execute  this  act  in  the  capacity  of  commissioners" 

A  view  of  this  statute  was  also  expressed  by  the 
Circuit  Court  for  the  District  of  Pennsylvania. 

The  historic  development,  as  well  as  the  extent 
to  which  the  courts  should  logically  carry  the  doc- 
trine, was  set  forth  in  a  learned  decision  by  Justice 
Iredell,  in  the  case  of  Calder  v.  Bull.  *  The  ques- 
tion at  issue  grew  out  of  a  Connecticut  law  which 
was  claimed  to  be  ex  post  facto,  and,  therefore, 
unconstitutional.  Without  reviewing  the  merits 

1 3  Dallas,  386. 


38    Interpretation  of  Political  Theory 

of  the  case,  I  simply  quote  the  language  touching 
the  point  under  discussion.  After  considering 
the  supreme  power  of  Parliament,  the  Court 
said, 

"In  order,  therefore,  to  guard  against  an  evil,  it 
has  been  the  policy  of  all  the  American  states  which 
have,  individually,  framed  their  state  constitu- 
tions since  the  Revolutionary  War,  and  the  people 
of  the  United  States  when  they  framed  the  Federal 
Constitution,  to  define  with  precision  the  objects 
of  the  legislative  power,  and  to  restrain  its  exercise 
within  marked  and  settled  boundaries.  If  any 
act  of  Congress,  or  of  the  Legislature  of  a  state, 
violates  those  constitutional  provisions,  it  is  un- 
questionably void;  though,  I  admit,  that  as  the 
authority  to  declare  it  void  is  of  a  delicate  and 
awful  nature,  the  Court  will  never  resort  to  that 
authority,  but  in  a  clear  and  urgent  case.  If,  on 
the  other  hand,  the  Legislature  of  the  Union,  or  the 
Legislature  of  any  member  of  the  Union,  shall  pass 
a  law,  within  the  scope  of  their,  constitutional 
power,  the  Court  cannot  pronounce  it  to  be  void, 
merely  because  it  is,  in  their  judgment,  contrary 
to  the  principles  of  natural  justice.  The  ideas  of 
natural  justice  are  regulated  by  no  fixed  standard ; 
the  ablest  and  purest  men  have  differed  upon  the 
subject ;  and  all  that  the  Court  could  possibly  say, 
in  such  an  event,  would  be,  that  the  Legislature, 
possessed  of  an  equal  right  of  opinion,  had  passed 
an  act  which,  in  the  opinion  of  the  judges,  was 
inconsistent  with  the  abstract  principles  of  justice." 

The  effect  of  this  decision  was  to  give  judicial 
limitation  to  the  argument  of  counsel  in  the  early 


Judicial  Power  over  Legislative  Acts  39 

Virginia  case  of  Robin  v.  Hardeman,  that  the 
courts  should  measure  the  legality  of  a  statute  by 
the  standards  of  abstract  justice ;  but  this  decision, 
in  unequivocal  terms,  affirms  that  the  courts  have 
the  right  to  measure  a  statute  by  the  terms  and 
import  of  the  Constitution.  Undoubtedly  this 
decision  had  much  weight  as  a  precedent,  but  the 
opinion  in  the  case  of  Marbury  v.  Madison  was 
the  one  that  settled  the  doctrine  in  the  Federal 


courts. 

^•^•^^         '*• 

This  case,  reported  in  I  Cranch,  137,  was  sub- 
mitted to  the  Supreme  Court  in  1803.  Marbury 
held  a  judicial  appointment  under  John  Adams, 
which  had  been  duly  approved  by  the  Senate,  his 
commission  was  duly  signed  and  sealed,  but  not 
delivered.  Before  Marbury  could  begin  his  duties, 
Adams  was  superseded  by  Madison  as  President, 
who  refused  to  deliver  the  commission.  Marbury 
applied  to  the  Supreme  Court  for  a  writ  of  man- 
damus to  compel  the  delivery  of  the  commission. 
The  decision  sustained  the  contention  of  Marbury. 
But  in  doing  so,  the  justices  held  that  that  clause 
of  the  Judiciary  Act  that  gave  the  Supreme  Court 
original  jurisdiction  in  issuing  writs  of  mandamus 
was  unconstitutional;  hence,  inoperative  and  void. 
The  decision  is  too  long  to  quote  here,  but  sub- 
stantially the  Court  held  that  supreme  sovereignty 
resides  in  the  people.  They  have  the  power  to 
organize  the  Government  and  to  assign  to  the 
different  departments  their  respective  powers. 
They  have  the  authority  to  define  the  ultimate 


4O    Interpretation  of  Political  Theory 

power  of  each.  The  Constitution  denned  the 
limits  of  legislative  power,  and  beyond  these  limits 
Congress  could  not  go  without  the  expressed  will 
of  the  people  in  the  form  of  constitutional  amend- 
ments. It  was  to  be  definitely  understood  that 
under  our  written  Constitution  Congress  did  not 
possess,  and  could  not  exercise,  the  omnipotence 
of  Parliament.  The  courts  are  compelled  in  the 
exercise  of  their  official  functions  to  recognize 
this  limitation  of  Congress.  The  courts  cannot 
give  force  and  effect  to  legislative  acts  that  at- 
tempt to  bestow  privileges  or  grant  rights  that 
the  Constitution  forbids.  Such  an  act  of  Con- 
gress, repugnant  to  the  Constitution,  is  void;  and  it 
is  clearly  the  duty  and  the  essence  of  judicial 
power  to  so  decree.  For  the  courts  to  fail  in  the 
performance  of  this  important  duty  would  result 
in  reducing  the  Constitution  to  the  level  with  the 
ordinary  acts  of  the  Legislature.  This,  of  course, 
was  not  contemplated  or  desired,  either  by  the 
framers  of  the  Constitution,  or  the  people  who 
ratified  it.  The  Constitution  was  accepted  by 
the  people  with  the  understanding  that  it  was  to 
be  the  "  superior,  paramount  law,  and  unchange- 
able by  ordinary  means."  The  courts  are  com- 
pelled to  take  cognizance  of  this  fact.  They  must 
weigh  every  law  in  the  constitutional  balance,  and 
if  the  law  falls  short,  the  courts  must  so  declare. 
If  both  the  statute  and  the  Constitution  apply  to  a 
particular  case,  and  these  are  in  conflict,  it  is  clearly 
the  duty  of  the  court  to  uphold  the  Constitution, 


Judicial  Power  over  Legislative  Acts  41 

and  to  declare  the  statute  void.  Those,  then,  who 
controvert  the  principle  that  the  Constitution  is 
to  be  considered,  in  Court,  as  a  paramount  law, 
are  reduced  to  the  necessity  of  maintaining  that 
courts  must  close  their 'eyes  on  the  Constitution, 
and  see  only  the  law.  "No  person,"  says  the 
Constitution,  "shall  be  convicted  of  treason  unless 
on  the  testimony  of  two  witnesses  to  the  same 
overt  act,  or  on  confession  in  open  Court."  Here 
the  language  is  addressed  directly  to  the  Court. 
It  prescribes  a  rule  of  evidence  not  to  be  departed 
from.  If  the  Legislature  should  change  this  rule, 
and  declare  one  witness,  or  a  confession  out  of 
Court,  sufficient  for  a  conviction,  must  the  con- 
stitutional principle  yield  to  the  legislative  act? 
It  is  apparent  that  the  framers  of  the  Constitution 
contemplated  that  instrument  as  a  rule  for  the 
government  of  courts,  as  well  as  of  the  Legislature. 
Judges  in  their  official  oaths  swear  to  discharge 
the  duties  of  their  office  agreeably  to  the  Constitu- 
tion and  the  laws  of  the  United  States.  Why  does 
a  judge  swear  to  discharge  his  duties  agreeably  to 
the  Constitution  of  the  United  States  if  that 
Constitution  forms  no  rule  for  his  government — if 
it  is  closed  upon  him  and  cannot  be  inspected 
by  him?  If  such  be  the  real  state  of  things, 
this  is  worse  than  solemn  mockery.  To  pre- 
scribe or  take  this  oath  becomes  equally  a  crime. 
A  few  extracts  from  this  historic  opinion  will 
illustrate  the  remorseless  logic  of  the  great  Chief 
Justice. 


42     Interpretation  of  Political  Theory 

"The  question  whether  an  act  repugnant  to  the 
[Constitution  can  become  the  law  of  the  land,  is  a 
'question  deeply  interesting  to  the  United  States, 
but  happily  not  of  an  intricacy  proportioned  to  its 
interest.  It  seems  only  necessary  to  recognize 
certain  principles  supposed  to  have  been  long  and 
well-established  to  decide  it.  ...  The  powers 
of  the  Legislature  are  defined  and  limited ;  and  that 
those  limits  may  not  be  mistaken  or  forgotten, 
the  Constitution  is  written.  .  .  .  The  Constitu- 
tion is  either  a  superior  paramount  law,  unchange- 
able by  ordinary  means,  or  it  is  on  a  level  with 
ordinary  legislative  acts,  and,  like  other  acts, 
is  alterable  when  the  Legislature  shall  please  to 
alter  it.  If  the  former  part  of  the  alternative  be 
true,  then  written  Constitutions  are  absurd  at- 
tempts, on  the  part  of  the  people,  to  limit  a  power 
in  its  own  nature  illimitable.  ...  If  an  act  of 
the  Legislature  repugnant  to  the  Constitution  is 
void,  does  it,  notwithstanding  its  invalidity,  bind 
the  courts,  and  oblige  them  to  give  it  effect?  Or, 
in  other  words,  though  it  be  not  a  law,  does  it 
constitute  a  rule  as  operative  as  if  it  were  a  law? 
This  would  be  to  overthrow  in  fact  what  was 
established  in  theory,  and  would  seem  at  first 
view  an  absurdity  too  gross  to  be  insisted  on.  It 
shall,  however,  receive  a  more  attentive  considera- 
tion. It  is  emphatically  the  province  and  duty  of 
the  judicial  department  to  say  what  the  law  is. 
Those  who  apply  the  rule  to  particular  cases  must 
of  necessity  expound  and  interpret  that  rule.  If 
two  laws  conflict  with  each  other,  the  courts  must 
decide  on  the  operation  of  each.  So  is  a  law  in 
opposition  to  the  Constitution ;  if  both  the  law  and 
Constitution  apply  to  a  particular  case,  so  that 
the  Court  must  either  decide  that  case  conform- 
ably to  the  law,  disregarding  the  Constitution,  or 


Judicial  Power  over  Legislative  Acts  43 

conformably  to  the  Constitution,  disregarding  the 
law, — the  Court  must  determine  which  of  these 
conflicting  rules  governs  the  case.  This  is  of 
the  very  essence  of  judicial  duty.  If,  then,  the 
courts  are  to  regard  the  Constitution,  and  the 
Constitution  is  superior  to  any  ordinary  act  of 
the  Legislature,  the  Constitution  and  not  such 
ordinary  act,  must  govern  the  case  to  which  they 
both  apply."1 

The  effect  of  this  decision  was  practically  to 
settle  the  doctrine  in  the  Federal  courts.  It  had, 
also,  a  tremendous  weight  in  establishing  the  doc- 
trine in  the  state  courts.  Its  logic  was  invincible ; 
its  argument  so  clear  as  to  leave  little  room  to 
doubt  its  correctness. 

Rufus  Choate  has  said,  with  reference  to  this 
decision  (Marbury  v.  Madison)  and  the  impor- 
tance of  the  doctrine,  that: 

"  I  do  not  know  that  I  can  point  to  one  achieve- 
ment in  American  statesmanship  which  can  take 
rank  for  its  consequence  of  good  above  that  single 
decision  of  the  Supreme  Court,  which  adjudged 
an  act  of  the  Legislature  contrary  to  the  Constitu- 
tion to  be  void,  and  that  the  judicial  department 
is  clothed  with  the  power  to  ascertain  the  repug- 
nancy, and  pronounce  the  legal  conclusion.  That 
the  framers  of  the  Constitution  intended  this  to  be 
so  is  certain ;  but  to  have  asserted  it  against  Con- 
gress and  the  Executive,  to  have  vindicated  it  by 
that  easy,  yet  adamantine  demonstration  than 

1  i  Cranch,  p.  137;  also  quoted  in  Carson's  The  History  of  the 
Supreme  Court,  vol.  i.,  p.  219,  et  seq. 


44    Interpretation  of  Political  Theory 

which  the  reasoning  of  mathematics  shows  nothing 
surer,  to  have  inscribed  this  vast  truth  of  con- 
servatism upon  the  public  mind,  so  that  no  dema- 
gogue, not  in  the  last  stage  of  intoxication,  denies 
it — this  is  an  achievement  of  statesmanship  (of 
the  judiciary)  of  which  a  thousand  years  may  not 
exhaust  or  reveal  all  the  good. " 

But  one  link  remains  in  the  long  chain  of  de- 
cisions to  make  it  complete;  i.  e.,  in  cases  where 
the  statutes  of  a  state  are  repugnant  to  the  Consti- 
tution. The  first  of  a  long  line  of  decisions  declar- 
ing a  state  law  void  and  of  no  effect,  because  it 
violated  a  principle  of  the  Federal  Constitution, 
is  that  of  Fletcher  v.  Peck. *  This  decision  is  also 
historic,  because  it  was  the  first  judicial  restriction 
by  the  Supreme  Court  upon  the  powers  of 

states.    Of  this  decision  Carson  says : 

•«— — — 

"It  towers  above  the  decisions  of  a  period  of 
many  years,  important  and  imposing  though  they 
are,  and,  with  Marbury  v.  Madison,  stands  as  an. 
outspur  of  that  magnificent  range  of  adjudications 
which  bear  to  our  constitutional  jurisprudence 
the  relative  strength  and  majesty  of  the  Rocky 
Mountains  to  our  physical  geography."2 

In  this  case  the  State  of  Georgia  had  sought,  by 
legislative  enactment,  to  dispossess  a  landholder 
of  his  property,  which  had  been  acquired  under  a 
previous  statute  of  the  same  state.  The  Supreme 

'6  Cranch,  p.  87. 

*  The  History  of  the  Supreme  Court,  p.  219  et  seq. 


Judicial  Power  over  Legislative  Acts  45 

Court  held  that  a  grant  thus  acquired  was  an 
executed  contract,  and  that  the  owner  should  not 
be  dispossessed  even  by  subsequent  legislation. 
The  Court  approached  the  question  of  the  uncon- 
stitutionality  of  the  state  statute  in  a  solemn  and 
dignified  manner: 

"The  question  whether  a  law  be  void  for  its 
repugnance  to  the  Constitution  is  at  all  times  a 
question  of  much  delicacy,  which  ought  seldom,  if 
ever,  to  be  decided  in  the  affirmative  in  a  doubt- 
ful case.  The  Court,  when  impelled  by  duty  to 
render  such  a  judgment,  would  be  unworthy  of  its 
station  could  it  be  unmindful  of  the  solemn  obliga- 
tions which  that  station  imposes.  But  it  is  not  on 
slight  implication  and  vague  conjecture  that  the 
Legislature  is  to  be  pronounced  to  have  tran- 
scended its  powers,  and  its  acts  to  be  considered  as 
void.  The  opposition  between  the  Constitution 
and  the  law  should  be  such  that  the  judge  feels  a 
clear  and  strong  conviction  of  their  incompatibility 
with  each  other." 

With  this  decision,  and  thus  early  (1810),  the 
power  of  the  Supreme  Court  to  declare  a  statute 
null  and  void,  because  repugnant  to  the  Constitu- 
tion, was  now  complete  and  the  doctrine  has  never 
since  been  seriously  controverted,  for,  as  we  have 
seen,  the  principle  was  maintained  by  the  colonial 
courts  in  colonial  days,  it  was  early  declared  with 
reference  to  a  Federal  statute  by  our  Supreme 
Court,  and  it  was  but  a  logical  and  natural  step 
to  reaffirm  the  doctrine  with  reference  to  the 


46     Interpretation  of  Political  Theory 

acts  of  the  legislatures  of  the  various  states. 
With  this  brief  review  of  this  important  doc- 
trine, we  are  now  to  trace  its  application  in  those 
legislative  enactments  that  reflect  political  issues. 
It  is  true,  as  Bryce  says,  "Some  questions,  and 
among  them  many  which  involve  political  issues, 
can  never  come  before  the  Federal  courts,  because 
they  are  not  such  as  are  raisable  in  an  action 
between  parties";  still,  most  of  the  great  political 
issues  that  have  composed  party  doctrine  have 
been  opposed  on  constitutional  grounds,  and  these, 
when  enacted  into  law,  have  usually,  in  some  form, 
become  matters  for  judicial  decree.  The  American 
doctrine  of  judicial  supremacy  itself  was  more  or 
less  of  a  political  issue  in  the  early  history  under 
our  Constitution.  With  the  settlement  of  this 
doctrine  as  an  ill-defined  issue,  the  foundation  was 
laid  for  the  final  solution  of  all  those  political  issues 
that  were  fundamental  and  vital.  Some,  as  we  shall 
see,  were  founded  on  sound  theory,  and  based  upon 
a  keen  insight  into  the  nature  of  our  political  in- 
stitutions; others,  were  to  contain  false  doctrine, 
incorrect  inferences,  and  faulty  vision.  Each  of 
the  two  great  parties,  at  times,  has  had  its  share 
of  each.  Both  have  long  since  recognized  the  ad- 
vantage "of  relegating  questions  not  only  intricate 
and  delicate,  but  peculiarly  liable  to  excite  political 
passions,  to  the  cool,  dry  atmosphere  of  judicial 
determination,"  and  to  accept  in  good  faith  the 
power  of  the  judiciary  to  uphold  the  sound  and 
rescind  the  false. 


CHAPTER  II 

THEORY  OF  CONSTITUTIONAL  CONSTRUCTION 

/COMPARATIVELY  few  of  the  numerous  dif- 
^~J  ferences  that  arose  in  the  Federal  Conven- 
tion were  destined  to  remain  unsettled  after  the 
adoption  and  ratification  of  the  Constitution.  The 
uncertainty  as  to  aim  at  the  beginning  of  the 
Convention  made  disagreement  certain.  The  views 
as  to  the  nature  of  the  Government  extended  from 
a  Statenbund  on  the  one  hand  to  a  Bunderstadt  on 
the  other  with  every  shade  of  view  between  these. 
The  former  view  found  expression  in  the  Virginia 
plan,  and  the  latter  in  the  New  Jersey  plan.  From 
the  submission  of  the  Virginia  plan  on  May  the 
29th,  until  September  the  lyth,  when  the  Conven- 
tion finished  its  work,  there  was  a  constant  clash 
of  opinion,  followed  by  compromise  or  concession. 
But  with  the  final  adoption  of  the  Constitution, 
many  of  these  differences  disappeared  and  the 
delegates  returned  to  their  respective  states  and 
worked  for  the  ratification  of  the  Constitution. 
These  were  called  Federalists  and  their  opponents, 
who  sought  to  prevent  the  ratification  in  the  form 
submitted,  were  called  Anti-Federalists.  These 
parties  marked  the  beginning  of  party  history 

47 


48     Interpretation  of  Political  Theory 

with  reference  to  our  Federal  institutions.  The 
Anti-Federalist  party  stood  for  the  freedom  of  the 
individual  citizen^  and  the  restriction  of  Federal 

interference  in_the_affairs  of  the  states. The  most 

fundamental  of  their  doctrines  was  that  of  the 
manner  of  the  construction  to  be  given  this  Con- 
stitution when  adopted.  The  party  name  ceased  to 
be  applicable  after  the  adoption  of  the  Constitu- 
tion, and  they  then  began  to  be  called  Republicans 
or  Democratic-Republicans.  The  history  and  re- 
sult of  the  two  views  of  construing  the  organic  law 
will  now  be  considered. 

Jefferson  soon  became  the  leading  advocate  of 
strict  construction  and  the  most  prominent  mem- 
ber of  the  Republican  party.  He  supported  his 
doctrine  with  the  ninth  and  tenth  amendments 
to  the  Constitution,  which  are  as  follows:  "The 
enumeration  in  the  Constitution  of  certain  rights 
shall  not  be  construed  to  deny  or  disparage  others 
retained  by  the  people,"  and  "The  powers  not 
delegated  to  the  United  States  by  the  Constitu- 
tion, nor  prohibited  by  it  to  the  States,  are  re- 
served to  the  States  respectively  or  to  the  people. " 
Hamilton,  the  great  Federalist  leader,  made  his 
maxim,  "If  the  end  is  clearly  defined,  the  means 
must  be  employed  to  reach  it."  justify  his  belief 
in  the  implied  powers  and  loose  construction. 
While  there  can  be  little  doubt  that  strict  construc- 
tion was  a  sound  principle  in  theory,  the  difficulty 
of  amending  the  Constitution  has  led  to  the  adop- 
tion of  the  principle  of  loose  construction.  In  fact, 


/Theory  of  Constitutional  Construction  49 

Jefferson  found  himself  compelled  to  violate  his 
cherished  doctrine.  The  purchase  of  the  Louisiana 
territory  was  beyond  any  possible  expressed  power 
granted  in  the  Constitution.  Bryce,  in  his  Ameri- 
can Commonwealth,  has  characterized  this  as  "the 
boldest  step  ever  taken  by  a  President. "  Jefferson 
recognized  his  inconsistency  and  sought  to  have 
his  act  ratified  by  constitutional  amendment,  but 
the  general  approval  of  the  people  caused  Congress 
to  ignore  the  request.  The  Embargo  Act  of  De- 
cember 22,  1807,  was  passed  at  the  instance  of 
Jefferson,  which  prohibited  the  sailing  of  any  mer- 
chant vessel  from  any  American  port,  save  coasters. 
Jefferson  could  hardly  have  justified  this  act  under 
a  policy  of  strict  construction.  The  defenders  of 
loose  construction,  on  the  other  hand,  were  not 
unwilling  to  use  Jeffersonian  doctrine  when  their 
commercial  interests  were  jeopardized.  During  the 
War  of  1 8 1 2 ,  when  the  commercial  interests  began  to 
suffer  in  the  New  England  states,  the  Hartford  Con- 
vention was  held  in  which  secession  was  threatened 
on  the  ground  that  Congress  and  the  Executive  had 
exceeded  their  authority  under  the  Constitution. 

Opposition  to  other  early  legislative  measures 
caused  widespread  discussion  of  the  limitation  of 
the  powers  of  Congress.  Notable  among  these 
were  the  Alien  and  Sedition  laws,  passed  by  a 
Federalist  Congress  in  1798.  These  laws  brought 
forth  the  famous  Virginia  and  Kentucky  Resolu- 
tions, which  Woodburn1  calls  "the  first  party 

1  Political  Parties  and  Party  Problems,  p.  18. 
4 


50    Interpretation  of  Political  Theory 

platform  ever  published  in  America."  Judicial 
power  was  not  invoked  to  pass  upon  the  constitu- 
tionality of  these  laws.  The  general  opposition 
of  the  people  caused  their  early  repeal.  It  is 
interesting  to  contemplate  what  might  have  been 
the  result  had  these  laws  been  passed  upon  by 
the  Supreme  Court  and  adversely  decided  before 
Marshall  came  to  the  Bench. 

The  doctrine  of  loose  construction  has  had  party 
support  from  the  earliest  days  of  our  history,  and 
the  Democratic  party  has  opposed  it  from  the 
days  of  Jefferson  until  now.  It  was  not  the 
custom  in  our  early  political  history  to  adopt 
platforms  and  hold  conventions,1  but  well- 
defined  views  existed  upon  this  subject.  When 
the  convention  system  began  and  the  custom 
was  established  of  submitting  a  party  platform, 
the  demand  for  strict  construction  was  an 
early  declaration  of  the  Democratic  party.  In 
their  platform  of  1840  the  following  language 
was  used: 

r 

"Resolved,  that  the  Federal  Government  is  one 
of  limited  powers,  derived  solely  from  the  Constitu- 
tion, and  the  grants  of  power  shown  therein  ought 
to  be  strictly  construed  by  all  the  departments  and 
agents  of  the  Government,  and  that  it  is  inex- 
pedient and  dangerous  to  exercise  doubtful  consti- 
tutional powers." 

1  The  first  formal  platform  ever  adopted  was  issued  by  the 
National  Republicans  in  May  of  1832,  and  presidential  candidates 
were  first  nominated  by  conventions  in  that  year. 


Theory  of  Constitutional  Construction  51 

This  doctrine  has  been  reiterated  in  practically 
every  platform  from  that  time  to  this.  In  most 
cases  the  language  of  this  first  declaration  has  been 
used.  In  the  platform  of  1880,  after  pledging 
anew  their  allegiance  to  the  constitutional  doc- 
trines and  traditions  of  the  Democratic  party,  the 
plank  that  follows  "declares  opposition  to  central- 
ization and  the  spirit  of  encroachments."  Most 
of  the  platforms  since  that  time  have  used  the 
word  "centralization"  in  describing  the  danger 
to  which  the  country  is  subjected  under  a  policy 
of  loose  construction.  The  Whigs,  in  their  plat- 
form of  1852,  also  adopted  this  Democratic  doc- 
trine and  voiced  it  in  the  following  words:  "The 
Government  of  the  United  States  is  of  a  limited 
character,  and  is  confined  to  the  exercise  of  powers 
especially  granted  by  the  Constitution." 
This  important  question  has  been  at  the  bottom 
I  of  most  of  the  differences  that  have  become  issues  be- 
I  tween  the  dominating  parties  of  the  country.  Very 
*  few  of  the  leading  decisions  of  the  Supreme  Court 
on  constitutional  questions  have  failed  to  incor- 
porate into  its  argument  the  Court's  views  upon 
the  subject  of  the  manner  of  construing  the  Con- 
stitution. The  attitude  of  the  Supreme  Court 
upon  the  question  is  one  of  unusual  interest  and 
importance.  The  view-point  is  novel  in  govern- 
mental science,  because  under  no  other  constitu- 
tional government  could  this  question  arise.  The 
doctrine  will  now  be  traced  as  briefly  as  possible 
through  the  decisions  of  the  Supreme  Court. 


52     Interpretation  of  Political  Theory 

The  earliest  case  touching  upon  this  question 
was  that  of  the  United  States  v.  Fisher.1  This 
was  a  decision  construing  an  act  of  March,  1797, 
in  which  a  preference  was  given  to  the  United 
States  in  cases  of  insolvency.  Upon  this  point  the 
Court  said: 

"The  preference  claimed  by  the  United  States  is 
not  prohibited;  but  it  has  been  truly  said  that  under 
a  constitution  conferring  specific  powers,  the  power 
contended  for  must  be  granted,  or  it  cannot  be 
exercised.  It  is  claimed  under  the  authority  to 
make  all  laws  which  shall  be  necessary  and  proper 
to  carry  into  execution  the  powers  vested  by  the 
Constitution  in  the  Government  of  the  United 
States,  or  in  any  department  or  officer  thereof. 
In  construing  this  clause  it  would  produce  endless 
difficulties  if  the  opinion  should  be  maintained 
that  no  law  was  authority  which  was  indispensably 
necessary  to  give  effect  to  a  specific  power." 

This  opinion  finds  its  justification  for  tending  to- 
ward loose  construction  in  the  last  paragraph  of 
Section  VIII.,  Article  I. 

The  next  step  in  the  development  of  the  doc. 
trine  was  in  a  very  carefully  considered  opinion 
delivered  bv  Justice  Story .*  This  emphatic  lan- 
guage was  used : 

'The  Government  of  the  United  States  can  claim 
no 'powers  which  are  not  granted  to  it  by  the  Con- 

1  2  Cranch,  496. 

*  Martin  v.  Hunters  Lessee,  i  Wheaton,  560. 


Theory  of  Constitutional  Construction  53 

stitution  and  the  powers  actually  granted  must  be_ 
such  as  are  expressly  given,  or  given  by  necessary, 
implication^  IJn  the  other  nand,  this  instrumentT 
like  every  other  grant,  is  to  have  a  reasonable 
construction,  according  to  the  import  of  the  terms; 
and  where  a  power  is  expressly  given  in  general 
terms,  it  is  to  be  restrained  to  particular  cases, 
unless  the  construction  grows  out  of  the  context 
expressly  or  by  necessary  implication.  The  Con- 
stitution, unavoidably,  deals  in  general  language. 
It  did  not  suit  the  purposes  of  the  people,  in 
framing  this  great  charter  of  our  liberties,  to 
provide  for  minute  specifications  of  its  powers,  or 
to  declare  the  means  by  which  those  powers  should 
be  carried  into  execution.  It  was  foreseen  that 
this  would  be  a  perilous  and  difficult,  if  not  an 
impossible,  task.  The  instrument  was  not  in- 
tended  for  the  exigencies  of  a  few  years,  but  was  to 
endure  through  a  long  lapse  of  ages,  the  events  of 
which  wrere  locked  up  in  the  inscrutable  purposes 
of  Providence.  It  could  not  be  foreseen  what  new 
changes  and  modifications  of  power  might  be  in- 
dispensable to  effectuate  the  general  object  of  the 
charter;  and  restrictions  and  specifications,  which 
at  the  present  might  seem  salutary,  might,  in  the 
end,  prove  the  overthrow  of  the  system  itself. 
Hence,  its  powers  are  expressed  in  general  terms, 
leaving  to  the  legislature,  from  time  to  time,  to 
adopt  its  own  means  to  effectuate  legitimate  ob- 
jects, and  to  mold  and  model  the  exercise  of  its 
powers,  as  its  own  wisdom  and  the  public  interest 
should  require." 

This  decision  was  rendered  during  the  February 
term  of  1816,  and  it  has  been  considered  one  of  the 
most  important  that  the  Supreme  Court  has  ren- 


54    Interpretation  of  Political  Theory 

dered.  For  in  addition  to  the  question  above,  the 
decision  took  advanced  ground  on  the  question  of 
the  nature  of  the  Federal  Union,  which  was  to 
'  become  such  a  vital  issue  a  generation  later.  The 
doctrine  announced  above  as  to  legislative  power 
has  recently  brought  forth  a  notable  utterance 
from  President  Taft,  leader  of  the  party  that  has 
stood  for  the  doctrine  of  loose  construction.  In 
his  first  public  address  after  his  inauguration, *  he 
said: 

t 

"We  hear  much  in  these  days  of  the  usurpation 
or  extension  of  power  by  the  executive  branch. 
As  long  as  the  legislative  branch  has  the  power  of 
the  purse,  the  danger  of  executive  usurpation  is 
imaginative.  The  real  danger  arises  from  the 
disposition  of  the  legislative  branch  to  assume  that 
it  has  the  omnipotence  of  parliament  •  and  may 
completely  control  the  discretion  conferred 'upon 
the  Executive  by  the  Constitution." 

While  the  doctrine  of  loose  construction  has 
often  been  affirmed  by  the  courts,  the  justification 
has  resulted  from  a  very  limited  number  of  pro- 
visions under  Section  VIII.  of  the  Constitution,  in 
which  certain  very  definite  powers  have  been 
granted  to  Congress.  The  exercise  of  those  powers 
granted  in  paragraphs  I,  2,  3,  and  18  of  Section 
VIII.  has  most  often  called  into  question  the 
limitation  of  Congressional  power,  both  in  the 

1  See  memorial  address  on  Grover  Cleveland,  delivered  in  New 
York  on  March  18,  1909. 


Theory  of  Constitutional  Construction  55 

courts  and  in  political  debate.  The  first  paragraph 
gives  to  Congress  power  "to  pay  the  debts  and 
provide  for  the  common  defense  and  general  wel- 
fare of  the  United  States" ;  the  second,  "to  borrow 
money  on  the  credit  of  the  United  States,"  and  the 
third,  "jo  regulate  commerce  with  foreign  Nations, 
and  among  the  several  States,  and  with  the  Indian 
tribes."  This  is  true  especially  of  that  phrase, 
"among  the  several  states,"  in  the  third  para- 
graph, and  the  eighteenth,  which  is  the  general 
clause  which  gives  to  Congress  power  "to  make  all. 
laws  which  shall  be  necessary  and  proper  for  carry- 
ing into  execution  the  foregoing  powers,  etc. "  The 
commerce  clause  (paragraph  3)  has  been  more 
often  referred  to  by  the  courts  than  any  other 
clause  of  the  Constitution,  and  since  the  passage 
of  the  Interstate  Commerce  Act,  under  the  power 
jmplied  in  this  clause,  in  1884,  an<^  the  recognition 
of  the  constitutionality  of  the  act  by  the  courts, 
it  is  becoming  more  and  more  important. 

Growing  out  of  the  financial  plans  of  Alexander 
Hamilton,  Congress,  in  1791,  passed  the  law  creat- 
ing the  first  United  States  bank.  In  defending  his 
scheme  Hamilton  first  announced  the  doctrine 
of  loose  construction  and  implied  powers,  and 


became  its  chief  defender.  The  power  to  "emit 
bills  of  credit  and  make  them  legal  tender  in  pay- 
ment of  debts"  was  denied  to  the  Federal  Govern- 
ment by  the  Constitution.  The  Constitutional 
Convention,  by  a  vote  of  nine  states  to  two,  re- 
fused to  confer  this  power  upon  the  Federal 


56    Interpretation  of  Political  Theory 

Government.  So  the  friends  of  the  bank  sought 
justification  in  the  power  granted  to  Congress 
"to  borrow  money  upon  the  credit  of  the  United 
States."  The  constitutionality  of  the  Bank  Act 
was  upheld  in  the  historic  opinion  of  Marshall  in 
the  case  of  M'Cullough  v.  The  State  of  Maryland. x 
This  is  the  language  used : 

"Among  the  enumerated  powers,  we  do  not  find 
that  of  establishing  a  bank  or  creating  a  corpora- 
fction.  But  there  is  no  phrase  in  the  instrument 
1  which,  like  the  Articles  of  Confederation,  excludes 
\incidental  or  implied  powers,  and  which  requires 
that  everything  granted  shall  be  expressly  and 
minutely  described.  A  constitution,  to  contain  an 
accurate  detail  of  all  the  subdivisions  of  which  its 
great  powers  will  admit,  and  of  all  the  means  by 
which  they  may  be  carried  into  execution,  would 
partake  of  the  prolixity  of  a  legal  code,  and -could 
scarcely  be  embraced  by  the  human  mind.  It 
would  probably  never  be  understood  by  the  public. 
Its  nature,  therefore,  requires  that  only  its  great 
outlines  should  be  marked,  its  important  objects 
designated,  and  the  minor  ingredients  which  com- 
pose those  objects  be  deduced  from  the  nature  of 
the  objects  themselves." 

The  opinion  was  concluded  with  the  following 
important  generalization: 

"Let  the  end  be  legitimate,  let  it  be  within  the 
scope  of  the  Constitution,  and  all  means  which  are 
appropriate,  which  are  plainly  adapted  to  that 

*4Wheaton,  316. 


Theory  of  Constitutional  Construction  57 

end,  which  are  not  prohibited,  but  consistent  with 
the  letter  and  spirit  of  the  Constitution,  are 
constitutional." 

The  first  Federal  decision  involving  the  com- 
,  merce  clause  was  that  of  Gibbons  v.  Ogden. r  All 
the  early  litigation  growing  out  of  this  clause  was 
due  to  the  attempt  of  the  states  to  enforce  legisla- 
tive enactments  which  were  restricted  to  the  Fed- 
eral Government  under  the  authority  of  this 
paragraph.  The  most  important  of  these  state  de- 
cisions was  that  of  Livingston  and  Fulton  v.  Van 
Ingen,  a  New  York  case  and  reported  in  9  Johns, 
507.  Congress  did  not  attempt  to  legislate  under 
the  power  of  this  clause  until  within  recent  times. 
Since  1884,  the  courts  have  been  busy  upholding 
the  power  of  Congress  in  the  exercise  of  its  powers 
under  this  paragraph.  In  the  case  referred  to,  a 
New  York  statute  was  declared  inoperative  and 
void  that  attempted  to  give  to  Livingston  and 
Fulton  the  exclusive  carrying  trade  on  the  waters 
within  the  state.  In  Gibbons  v.  Ogden,  Chief 
Justice  Marshall  again  reasserted  the  doctrine 
of  loose  construction,  justifying  it  in  thiscase. 
upon  the  authority  of  the  "elastic  clause.^r*He 
said: 

"  This  instrument  contains  an  enumeration  of 
powers  expressly  granted  by  the  people  to  their 
government.  It  has  been  said  that  these  powers 
ought  to  be  strictly  construed.  But  why  ought 

1  9  Wheaton,  i.  2  Section  VIII.,  clause  18. 


58    Interpretation  of  Political  Theory 

they  to  be  so  construed?  Is  there  one  sentence  in 
.  the  Constitution  which  gives  countenance  to  this 
1  rule?  In  the  last  of  the  enumerated  powers — that 
1  which  grants,  expressly,  the  means  for  carrying 
\all  others  into  execution — Congress  is  authorized 
\to  make  all  laws  which  shall  be  necessary  and 
Iproper  for  the  purpose.  But  this  limitation  on  the 
means  which  may  be  used  is  not  extended  to  the 
powers  which  are  conferred;  nor  is  there  one  sen- 
tence in  the  Constitution  which  has  been  pointed 
out  by  the  gentlemen  of  the  bar,  or  which  we  have 
been  able  to  discern,  that  prescribes  this  rule.  We 
do  not,  therefore,  think  ourselves  justified  in 
adopting  it.  What  do  the  gentlemen  mean  by  a 
strict  construction?  If  they  contend  only  against 
that  enlarged  construction,  which  would  extend 
words  beyond  their  natural  and  obvious  import, 
we  might  question  the  application  of  the  term, 
but  we  should  not  controvert  the  principle.  If 
they  contend  for  that  narrow  construction  which. 
in  support  of  some  theory  not  to  be  found  in  the 
Constitution,  would  deny  to  the  Government  those 
powers  which  the  words  of  the  grant,  as  usually 
understood,  import,  and  which  are  consistent  with 
the  general  views  and  objects  of  the  instrument; 
for  that  narrow  construction,  which  would  cripple 
the  Government,  and  render  it  unequal  to  the 
objects  for  which  it  is  declared  to  be  instituted,  to 
which  the  powers  given,  as  fairly  understood, 
render  it  competent ;  we  cannot  perceive  the  pro- 
priety of  this  strict  construction,  nor  adopt  it 
as  the  rule  by  which  the  Constitution  is  to  be 
expounded.  We  know  of  no  rule  for  construing 
the  extent  of  such  powers,  other  than  is  given  by 
the  language  of  the  instrument  which  confers 
them,  taken  in  connection  with  the  purposes  for 
which  they  were  conferred." 


Theory  of  Constitutional  Construction  59 

The  effect  of  this  decision  was  to  establish  the 
doctrine  in  unmistakable  terms,  as  far  as  judicial 
power  could  establish  any  governmental  principle. 

We  find,  however,  that  the  Supreme  Court  at- 
tempted to  restrict  the  principle  to  those  clauses 
referred  to  in  a  preceding  paragraph.  For  in- 
stance, in  the  case  of  Pennsylvania  v.  The  Wheel- 
ing and  Belmont  Bridge  Company,1  we  find  that 
the  Court  refused  to  apply  the  doctrine  to  the 
power  granted  to  Congress  "to  establish  post- 
roads."  The  Court  used  this  language: 

"  We  do  not  enter  upon  the  question,  whether  or 
not  Congress  possess  the  power,  under  the  author- 
ity in  the  Constitution  'to  establish  post-roads,' 
to  legalize  this  bridge;  for,  conceding  no  such 
powers  can  be  derived  from  this  clause,  it  must  be 
admitted  that  it  is,  at  least,  necessarily  included 
in  the  power  conferred  to  regulate  commerce 
among  the  several  States." 

The  commerce  clause  under  this  construction 
has  had  the  effect  of  greatly  multiplying  the  Con- 
gressional enactments  under  its  provision. 

"  Before  the  year  1840  the  construction  of  this 
clause  had  been  involved  in  but  five  cases  sub- 
mitted to  the  Supreme  Court  of  the  United  States. 
In  1860  the  number  of  cases  in  that  Court  involving 
its  construction  had  increased  to  twenty;  in  1870 
the  number  was  thirty;  by  1880  the  number  had 
increased  to  seventy -seven ;  in  1890  it  was  one  hun- 

1  18  Howard,  421. 


60    Interpretation  of  Political  Theory 

dred  and  forty-eight ;  while  at  the  present  time  it 
is  over  two  hundred."1 


The  Supreme  Court  met  with  its  greatest  diffi- 
culty in  applying  the  doctrine  of  loose  construction 
to  the  second  clause  of  Section  VIII.,  which  gave 
Congress  power  "to  borrow  money  on  fhe  credit 
of  the  United  States,"  due  largely  to  the  widely 
different  conditions  under  which  this  power  was 
invoked.  The  Court  met  with  no  difficulty  in 
applying  the  doctrine  in  the  case  of  the  Bank  of 
Commerce  v.  New  York  City,2  in  which  this 
power  was  cited  in  support  of  the  principle  that 
Congress  had  the  right  to  pass  a  law  exempting 
stock  of  the  United  States  from  state  taxation. 
But  a  greater  difficulty  was  encountered  when  the 
Court  came  to  apply  this  clause  in  justification  of 
legal  tender.  Upon  this  question  the  Supreme 
Court  decided  in  three  different  ways,  an  unpre- 
cedented fact  in  the  history  of  the  Court.  The 
first  case  involving  the  constitutionality  of  the 
Legal  Tender  acts  was  that  of  Hepburn  v.  Gris- 
wold,3  in  which  the  Court  held  the  act  unconstitu^ 
tional.  A  little  later,  the  Court  held  the  Legal 


Tender  acts  constitutional  on  the  ground  of  public 
necessity  and  expediency  for  self-preservation  as 
a  result  of  the  Civil  War.  The  Court  finally, '  in 


the  case  of  Julliard  v.  Greenbaum, 4  came  straight 
out   and  held  these   acts   constitutional   on   the 

1  Putney's  Constitutional  Law,  p.  385.  *  2  Black,  620. 

3  8  Wallace,  603.  4  no  U.  S.,  421. 


Theory  of  Constitutional  Construction  61 

broad  grounds  of  the  power  of  Congress  not  only 
to  provide  for  the  common  defense,  but  also  as  a 
result  of  the  power  "to  borrow  money  on  the 
credit  of  the  United  States."  This  decision  was 
rendered  in  1884,  and  doubtless  carries  the  doc- 
trine of  loose  construction  further  than  any  other 
opinion  ever  announced  by  the  Supreme  Court. 

It  is  clear  from  these  decisions  that  in  spite  of 
political  opposition  the  principle  is  an  established 
one  in  the  courts  of  the  country.  It  is  important 
to  observe  that  the  doctrine  grows  out  of  a  very 
limited  number  of  the  enumerated  powers  granted 
to  Congress.  It  might  be  fairly  asked,  to  what 
extent  can  the  doctrine  be  carried  in  applying  the 
powers  of  Congress  to  legislative  enactment?  A 
limit  must  be  fixed  to  the  extent  of  the  doctrine, 
otherwise  the  Constitution  will  cease  to  be  any 
safeguard  whatever.  Pomeroy,  in  his  Constitu- 
tional Law,1  has  answered  the  question  in  con- 
formity to  the  views  of  Chief  Justice  Marshall,  as 
follows : 


"If  a  particular  measure  has  such  a  connection 
or  relation  with  one  or  more  of  the  enumerated 
powers  granted  to  Congress  or  to  the  Government 
that  it  can  be  seen  in  any  degree  or  under  any  state 
of  circumstances  to  promote  the  efficiency  of  such 
power — or,  in  other  words,  that  such  power  can  be 
seen  to  be  made  in  any  degree  or  under  any 
circumstances  operative  through  its  instrumental- 
ity— then  the  measure  is  within  the  competency 

1  Bennett's  Edition,  p.  223. 


62     Interpretation  of  Political  Theory 

of  Congress  to  enact;  that  body  alone  is  the  judge 
of  the  closeness  of  the  relation  or  the  extent  and 
degree  of  the  efficiency,  and  having  judged,  the 
courts  cannot  review  its  decision.  The  same 
doctrine  may  be  expressed  in  another  form:  It  is 
not  within  the  province  of  the  courts,  in  the 
exercise  of  their  function  of  examining  into  the 
validity  of  statutes,  to  pass  upon  a  question, 
which,  when  reduced  to  its  lowest  terms,  is  one 
purely  of  political  economy." 

Possibly  this  is  the  best  and  clearest  statement 
that  has  been  made  as  to  the  extent  to  which  the 
doctrine  can  be  carried. 

Although  the  doctrine  has  a  permanent  place  in 
our  political  system,  still,  with  every  new  applica- 
tion, it  will  be  contested  by  some  political  party. 
The  Democratic  party  has  most  consistently  taught 
the  doctrine  of  strict  construction  and  the  Repub- 
,lican  party  the  doctrine  of  loose  construction. 

"In  general,  the  views  on  the  interpretation  of 
the  Constitution  held  by  Hamilton  and  the  Federal- 
ists have  been  those  of  the  Whig  and  the  Republi- 
can parties,  and  those  held  by  Jefferson  and  the 
Anti-Federalists  have  constituted  the  guiding  prin- 
ciples of  the  Democratic  party.  Strictly  speaking, 
however,  the  party  in  power  have  been  loose  con- 
structionists  and  their  opponents  have  been  strict 
constructionists." 1 

The  view  here  expressed  is  clearly  in  accord  with 
history.  Possibly  the  greatest  value  of  party 

1  James  and  Sanford's  Government  in  Stale  and  Nation,  p.  240. 


Theory  of  Constitutional  Construction  63 

government  is  in  this  very  fact.  Bryce1  saw  the 
practical  necessity  for  this  doctrine  when  he  used 
the  following  language : 

"The  interpretation  which  has  thus  stretched 
the  Constitution  to  cover  powers  once  undreamt  of 
may  be  deemed  a  dangerous  resource..  But  it  must 
be  remembered  that  even  the  constitutions  we  call 
rigid  must  make  their  choice  between  being  bent 
or  being  broken.  The  Americans  have  more  than 
once  bent  their  Constitution  in  order  that  they 
might  not  be  forced  to  break  it." 

Possibly  President  Woodrow  Wilson  sounded  the 
popular  note  of  the  present  time  on  this  subject 
when  he  said  "liberal  construction  of  the  Federal 
charter  the  people  want,  but  not  a  false  construc- 
tion of  it." 

1  American  Commonwealth,  vol.  i.,  p.  390. 


CHAPTER  III 

NATURE  OF  THE  FEDERAL  UNION 

THE  application  of  the  theory  of  loose  construc- 
tion made  possible  the  centralization  of 
power  and  the  enlargement  of  the  functions  of  the 
Federal  Government  under  the  Constitution.  Out 
of  the  question  of  the  relation  of  the  several  states 
to  the  National  Government  and  the  relative 
power  to  be  exercised  by  each  grew  the  most  fun- 
damental difference  between  the  members  of  the 
Federal  Convention.  The  centralizing  party  and 
the  states'  rights  party  both  had  able  and  ardent 
advocates.  This  question  proved  to  be  an  im- 
portant issue  in  the  various  states  before  the 
ratification  of  the  Constitution.  But  with  the 
adoption  of  the  Constitution  this  ceased  to  be  a 
question  of  paramount  importance  for  a  time. 
But  it  was  inevitable  that  so  fundamental  a  ques- 
tion as  that  of  nationality  could  not  be  long 
evaded  or  left  unsettled.  This  became  increas- 
ingly the  vexata  quastio  until  the  Civil  War.  The 
established  precedents  of  the  Supreme  Court  and 
the  application  of  the  principles  of  the  Republican 
party  in  the  form  of  legislation  made  possible  the 
larger  definition  of  nationality  in  the  decade  that 

64 


Nature  of  the  Federal  Union        65 

followed  the  Civil  War.     Bryce,  writing  of  this 
period,1  says: 

"This  election  [referring  to  the  election  of  1876] 
marks  the  close  of  the  third  period,  which  em- 
braces the  rise  and  overwhelming  predominance 
of  the  Republican  party.  Formed  to  resist  the 
extension  of  slavery,  led  on  to  destroy  it,  com- 
pelled by  circumstances  to  expand  the  central 
authority  in  a  way  unthought  of  before,  that  party 
has  now  worked  out  its  program  and  fulfilled 
its  original  mission.  The  old  aims  were  accom- 
plished, but  new  ones  had  not  yet  been  substituted, 
for  though  new  problems  had  appeared,  the  party 
was  not  prepared  with  solutions.  Similarly,  the 
Democratic  party  had  discharged  its  mission  in 
defending  the  rights  of  the  reconstructed  States, 
and  criticizing  excessive  executive  power ;  similarly, 
it  too  had  refused  to  grapple  either  with  the  fresh 
questions  which  began  to  arise  since  the  War,  or 
with  the  older  questions  which  now  reappeared 
above  the  subsiding  flood  of  war  days.  The  old 
parties  still  stood  as  organizations,  and  still 
claimed  to  be  the  exponents  of  principles.  Their 
respective  principles  had,  however,  little  direct 
application  to  the  questions  which  confronted  and 
divided  the  country." 

The  older  questions  referred  to  were  those  of 
finance  and  the  tariff,  neither  of  which  was  now  to 
be  contested  on  constitutional  grounds;  the  new 
questions  were  those  of  government  of  railroads, 
civil  service  reform,  and  the  liquor  question. 

This  was  a  period  in  which  the  dominant  parties 

1  American  Commonwealth,  Abridged  edition,  p.  463. 
5 


66    Interpretation  of  Political  Theory 

were  to  develop  new  tendencies.  It  might  be 
called  the  period  of  political  potentiality,  the  time 
for  gathering  strength  with  which  to  grapple  with 
the  problems  of  the  future.  Few  questions  arose 
on  which  one  party  was  to  take  the  affirmative 
in  the  debate  and  the  other  party  the  negative. 
Party  differences  were  to  be  viewed  from  differ- 
ent angles  rather  than  from  diametrically  opposite 
positions.  For  instance,  the  Republican  platform 
of  1856  was  silent  on  the  subject  of  protection,  but 
within  a  few  years  it  was  committed  to  this  doc- 
trine; while  the  Democratic  party  was  favorable 
to  free  trade  in  its  early  history,  at  this  period  it 
has  shifted  to  the  mild  protection  theory,  in  the 
form  of  a  "tariff  for  revenue  only."  The  present 
attitude  of  these  parties  may  be  fairly  inferred 
from  the  Republican  platform  of  1884,  and  the 
Democratic  platform  of  1 892 .  The  political  parties 
of  every  shade  of  belief  are  in  very  general  accord 
at  present  as  to  the  problems  that  confront  the 
country;  their  differences  have  grown  out  of  the 
nature  of  the  remedy  proposed. 

But  more  fundamental  and  more  important  than 
party  attitude  with  reference  to  public  questions 
since  the  Civil  War  has  been  the  change  in  party 
sentiment  as  to  the  nature  of  the  Federal  Union. 
The  echoes  of  the  Civil  War  recalled  to  the  atten- 
tion of  the  people  a  basic  principle  that  was,  by 
incidental  inference,  to  have  a  marked  influence 
on  the  subsequent  history  of  the  country.  The 
Hartford  Convention,  the  doctrine  of  Nullifica- 


Nature  of  the  Federal  Union        67 

tion,  and  the  Secession  movement,  reveal  the  fact 
that,  preceding  the  Civil  War,  there  was  no  unity 
of  conception  with  reference  to  the  nature  of  the 
Government  under  which  the  people  lived.  In 
the  fourth  paragraph  of  the  Republican  platform 
of  1868,  we  find  the  word,  "Nation,"  spelled  with 
a  capital  letter.  This  was  the  first  time  the  word 
had  been  so  used  in  a  platform,  and  it  was  not 
usually  so  written  in  general  correspondence  before 
the  War.  The  Republican  platform  also  congratu- 
lated "the  country  on  the  assured  success  of  the 
reconstruction  policy  of  Congress. "  In  answer  to 
this,  the  Democratic  platform  of  that  year  de- 
clared "That  the  Reconstruction  acts  (so-called), 
of  Congress,  as  such,  are  usurpations  and  unconsti- 
tutional ,  revolutionary,  and  void. "  The  advanced 
position  that  the  Republican  party  took  on  the 
power  of  the  Central  Government  was  the  result 
of  the  opposition  of  the  Democratic  party  to  re- 
construction, and  the  prejudice  growing  out  of 
the  Civil  War.  "Nation"  was  used  again  in  the 
Republican  platform  of  1872,  in  referring  to  the 
National  Government,  while  the  Democratic  plat- 
forms of  this  period  used  the  old  term,  "Federal 
Union, "  in  speaking  of  the  Union. 

The  history  of  the  transformation  of  the  terms 
"Federal  Government"  or  "Confederacy"  (as 
the  General  Government  was  usually  referred  to 
up  to  the  time  of  the  Civil  War  by  both  North  and 
South)  into  the  "Nation"  is  of  interest  and  conse- 
quence in  the  development  of  our  political  ideas. 


68    Interpretation  of  Political  Theory 

Lincoln,  in  his  debate  with  Douglas  in  1858,  used 
the  term  "Confederacy,"  in  speaking  of  the 
Union,  but  when  Confederacy  was  applied  to  the 
seceding  States  in  the  South,  the  term  was  gener- 
ally abandoned  by  the  North,  and  with  its  aban- 
donment the  old  idea  of  the  word  was  surrendered 
also.  Lincoln,  in  his  Gettysburg  address,  speaks 
of  "a  new  Nation  conceived  in  liberty  and  dedi- 
cated to  the  proposition  that  all  men  are  created 
equal."  From  this  time  on  it  was  often  asserted 
that  we  had  become  a  Nation  with  a  big  N.  This 
is  interesting  when  we  contrast  this  sentiment 
with  that  of  the  Constitutional  Convention;  for 
in  the  first  draft  of  the  Constitution  the  word 
"national"  was  struck  out  twenty-six  times  and 
the  words  "Government  of  the  United  States" 
substituted. r  But  the  new  word  had  taken  a  deep 
hold  upon  the  people,  and  its  frequent  use  by 
public  speakers  and  the  current  literature  of  the 
period  gave  it  permanence  in  our  political  vocabu- 
lary. With  the  appropriation  of  this  term  came 
the  tendency  of  the  party  in  power  to  extend  the 
powers  of  our  governmental  agencies,  especially 
that  of  the  executive  power.  Hence,  we  will  find 
much  in  the  platforms  of  the  Democratic  party 
declaring  opposition  to  centralization.  It  was  but 
a  step  for  the  Republican  party  to  go  from  the 
Reconstruction  acts  to  a  policy  of  increased  cen- 
tralization ;  it  was  but  logical  for  the  Democratic 

'See  Thorpe's  Constitutional  History  of  the  United  States,  vol. 
iii.,  p.  518. 


Nature  of  the  Federal  Union        69 

party,  in  antagonizing  the  reconstruction  policy 
of  the  party  in  power,  to  oppose,  when  the  time 
came,  the  growth  of  centralization. 

The  premise  for  this  growth  in  nationality  was 
carefully  laid  by  the  Federal  judiciary  in  the  early 
days  of  our  national  existence.  As  early  as  Febru- 
ary, 1794,  Justice  Patterson,  in  rendering  an  opin- 
ion of  the  Supreme  Court,1  said: 

"As  to  war  and  peace  and  their  necessary  inci- 
dents, Congress,  by  the  unanimous  voice  of  the  peo- 
ple, exercised  exclusive  jurisdiction,  and  stood  like 
Jove,  amidst  the  deities  of  old,  paramount  and  su- 
preme. The  truth  is,  that  the  states  individually 
were  not  known  nor  recognized  as  sovereign  by 
foreign  nations,  nor  are  they  now;  the  states  collec- 
tively, under  Congress,  as  the  connecting  point,  or 
head,  were  acknowledged  by  foreign  powers,  as  sov- 
ereign, particularly  in  that  acceptation  of  the  term, 
which  is  applicable  to  all  great  national  concerns, 
and  in  the  exercise  of  which  other  sovereigns  would 
be  more  immediately  interested ;  such  for  instance, 
as  the  rights  of  war  and  peace,  of  making  treaties, 
and  sending  and  receiving  ambassadors." 

John  Marshall,  "the  right  arm  of  nationality," 
throughout  his  brilliant  judicial  career  took  this 
larger  view  of  our  national  existence.  His  decision 
jn  Qifipnc:  ?>  Virginia a  wVnVh  was  rendered  in  1821, 
is  typical  of  many  that  he  delivered  bearing  on  the 
theory  of  our  nationality.  Touching  this  point,  he 
says: 

1  See  Penhallow  v.  Doane,  3  Dallas,  507. 
3  6  Wheaton,  264. 


yo    Interpretation  of  Political  Theory 

"  That  the  United  States  form,  for  many,  and  for 
most  important  purposes,  a  single  nation,  has  not 
yet  been  denied.  In  war,  we  are  one  people.  In 
making  peace,  we  are  one  people.  In  all  common 
regulations,  we  are  one  and  the  same  people.  In 
many  other  respects,  the  American  people  are  one ; 
and  the  Government,  which  is  alone  capable  of 
controlling  and  managing  their  interests,  in  all 
these  respects  is  the  Government  of  the  Union. 
It  is  their  Government,  and  in  that  character  they 
have  no  other.  America  has  chosen  to  be,  in  many 
respects,  and  to  many  purposes,  a  nation ;  and  for 
all  these  purposes  her  Government  is  complete; 
to  all  these  objects  it  is  competent." 

The  extent  to  which  the  national  authority  may 
go  was  discussed  by  Marshall  in  the  famous  case 
of  United  States  v.  Peters.1  He  contended  that 
this  power  extended  to  the  complete  annulment 
of  any  State  enactment  which  was  decided  to  be 
in  conflict  with  the  Constitution.  His  words  were 
significant,  yet  simple: 

"  If  the  legislatures  of  the  several  States  may  at 
will  annul  the  judgments  of  the  courts  of  the 
United  States,  and  destroy  the  rights  acquired 
under  those  judgments,  the  Constitution  itself 
becomes  a  solemn  mockery;  and  the  Nation 
is  deprived  of  the  means  of  enforcing  its  laws, 
by  the  instrumentality  of  its  own  tribunals. 
So  fatal  a  result  must  be  deprecated  by  all 
and  the  people  of  Pennsylvania  as  well  as  the 
citizens  of  every  other  state  must  feel  a  deep 
interest  in  resisting  principles  so  destructive  of 

*3  Dallas,  p.  121. 


Nature  of  the  Federal  Union        71 

the  Union,  and  in  averting  consequences  so  fatal 
to  themselves." 

One  year  later,  in  1810,  Marshall  reenforced 
this  decision  with  that  of  Fletcher  v.  Peck. 1  Here 
again  the  dignity  and  authority  of  the  nation 
were  unmistakably  declared : 

"  But  Georgia  cannot  be  viewed  as  a  single,  un- 
connected, sovereign  power,  on  whose  legislature 
no  other  restrictions  are  imposed  than  may  be 
found  in  its  own  constitution.  She  is  a  part  of  a 
large  empire;  she  is  a  member  of  the  American 
Union;  and  that  Union  has  a  Constitution  the 
supremacy  of  which  all  acknowledge,  and  which 
imposes  limits  to  the  legislatures  of  the  several 
states,  which  none  claim  a  right  to  pass." 

These  are  typical  of  the  opinions  of  Marshall 
on  the  theory  of  nationality.  There  are  too  many 
of  his  decisions  that  bear  upon  this  point  to  quote 
or  refer  to  them  all.  During  the  thirty-four  years 
that  Marshall  was  upon  the  Supreme  Bench  he 
delivered  the  opinion  in  five  hundred  and  nineteen 
cases.  Sixty-two  of  these  cases  involved  questions 
of  constitutional  law;  of  this  number,  Marshall 
himself  wrote  thirty-six.  During  the  period  that 
he  sat  upon  the  Supreme  Bench,  there  was  more 
unanimity  of  opinion  and  fewer  "majority  de- 
crees" than  has  ever  existed  since  his  day.  "Very 
rarely  was  there  given  a  dissenting  opinion,  and 
only  once  was  the  Chief  Justice  compelled  to  give 

'6  Cranch,  p.  87. 


72    Interpretation  of  Political  Theory 

[  a  dissenting  opinion  from  that  of  the  majority  of 
1  the  Court.  It  is  nearer  correct  to  say  that  in  all 
\ except  one  case  the  majority  of  the  Court  joined 
»the  great  Chief  Justice  in  his  opinion."  This  fact 
is  important  when  we  consider  his  influence  and 
legal  learning,  which  inspired  the  people  generally 
with  confidence  in  his  decisions,  in  connection  with 
his  views  of  the  nature  of  our  Federal  Union.  He 
saw  with  great  discernment  the  two  opposing 
views  of  the  followers  of  Hamilton  and  Jefferson, 
for  he  said : 

A 

"  The  whole  country  was  divided  between  two 
great  political  parties;  the  one  of  which  contem- 
plated America  as  a  nation  and  labored  inces- 
santly to  invest  the  Federal  head  with  powers 
competent  to  the  preservation  of  the  Union,  and 
the  other,  attached  to  the  state  governments, 
viewed  all  the  powers  of  -Congress  with  jealousy 
and  assented  reluctantly  to  measures  which  would 
enable  the  head  to  act  in  any  respect  independ- 
ently of  the  members." 

It  is  clear  from  this  quotation  to  which  party  he 
gave  his  sympathy,  and  he  did  more  than  give  his 
sympathy,  he  gave  his  theory  the  dignity  of  law 
by  writing  his  opinions  consistent  with  his  views. 

The  opinions,  quotations  from  which  are  taken 
above,  are  typical  of  the  judicial  mind  on  the 
subject  of  nationality  before  the  Civil  War.  It  is 
interesting  to  observe  the  caution  the  courts  used 
in  referring  to  the  supreme  power  of  the  National 
Government.  Even  Marshall  speaks  of  the  Federal 


Nature  of  the  Federal  Union        73 

Union  as  a  "single  nation,  for  many,  and  for  most 
important  purposes, "  and,  in  the  main,  leaves  this 
generalization  as  a  precedent  for  future  applica- 
tion. The  fact  is,  our  nationality  has  been  a 
growth,  the  extent  of  which  had  not  been  defined 
in  the  Constitution.  Viewed  in  the  light  of  politi- 
cal science,  we  had  always  been  a  nation;  the 
question  was  to  what  extent  we  had  become  a 
state.  There  is  both  an  etymological  and  histori- 
cal distinction  between  nation  and  state.  Nation 
is  derived  from  natio  (from  nasci)  and  indicates 
birth  and  race,  populus  and  polls  both  refer  to  the 
political  life  exercised  by  the  nation  (natio).  His- 
torically, the  nation  precedes  the  state.  The 
national  spirit  (volksgeist)  precedes  the  national 
will  (volksudlle) .  The  period  of  this  precedence 
may  be  long  or  short,  depending  on  many  condi- 
tions both  of  an  internal  and  external  nature.  In 
Germany  the  national  spirit  preceded  by  many 
centuries  the  national  will,  while  in  America  the 
period  was  comparatively  brief.  It  is  always  the 
natural  tendency  of  a  nation  to  seek  expression 
in  the  state.  This  fact  has  caused  Bluntschli1  to 
say,  "The  idea  of  a  nation  always  bears  a  neces- 
sary relation  to  the  state,  and  we  may  say,  No 
nation,  no  state."  He  modifies  this  by  saying 
that  "a  despot  knows  nothing  of  nations,  only  of 
subjects."  If  we  merge  a  collective  personality 
(the  nation)  into  a  national  will  (the  state),  we 
obtain  what  society  usually  designates  by  the 

1  The  Theory  of  the  State,  p.  86. 


74    Interpretation  of  Political  Theory 

single  term,  nation.  "By  a  nation  (volk)  we  gen- 
erally understand  a  society  of  all  the  members 
of  a  state  as  united  and  organized  in  the  state." 
It  is  evident  that  state  and  nation  were  regarded 
as  synonymous  terms  by  the  judiciary,  the  word 
nation  being  preferred  to  state,  as  the  latter  was 
the  nomenclature  of  the  largest  subdivision  of  the 
nation.  It  was  in  this  sense  that  "Nation"  was 
used  in  the  party  platforms,  especially  that  of  the 
Republican  party. 

The  question  that  grew  out  of  the  political 
agitation  of  the  time,  was  in  what  sense  the  word 
"state"  was  used  in  the  Constitution.  The  litera- 
ture of  political  science  is  rich  in  definitions  of 
the  term.  Professor  Holland1  says,  "A  state  is  a 
numerous  assemblage  of  human  beings,  generally 
occupying  a  certain  territory,  amongst  whom  the 
will  of  the  majority  or  of  an  ascertainable  class 
of  persons  is,  by  the  strength  of  such  a  majority 
or  class,  made  to  prevail  against  any  of  their 
number  who  oppose  it."  "A  state,"  says  Wood- 
row  Wilson,2  "is  a  people  organized  for  law  within 
a  definite  territory."  Wolsey3  gives  this  defini- 
tion: "The  body  or  community  which  thus  by 
permanent  law,  through  its  organs,  administers 
justice  within  certain  limits  of  territory  is  called 
a  state."  Do  either  or  all  of  these  definitions 
lapply  to  the  meaning  or  meanings  of  the  term 
I" state"  as  used  in  our  Federal  Constitution?  This 

1  Elements  of  Jurisprudence. 

1  The  State.  J  Political  Science. 


Nature  of  the  Federal  Union        75 

question  was  carefully  considered  in  the  short,  but 
important,  decision  of  Texas  v.  White.1     In  no 


other  judicial  opinion,  nor  perhaps  in  the  litera- 
ture of  political  science,  can  there  be  found  so 
learned  a  discussion  of  the  meaning  of  this  term 
as  used  in  our  Constitution,  as  in  the  illumin- 
ating opinion  of  Chief  Justice  Chase  in  this  case. 
With  reference  to  the  looseness  with  which  the 
term  has  been  used,  the  Court  said: 

"State  describes  sometimes  a  people  or  commun- 
ity of  individuals  united  more  or  less  closely  in 
political  relations,  inhabiting  temporarily  or  per- 
manently the  same  country;  often  it  denotes  only 
the  country  or  territory,  inhabited  by  such  a 
community;  not  infrequently  it  is  applied  to  the 
government  under  which  the  people  live;  at  other 
times  it  represents  the  combined  idea  of  people, 
territory,  and  government.  This  is  undoubtedly 
the  fundamental  idea  upon  which  the  republican 
institutions  of  our  own  country  are  established." 

For  this  last  assertion  the  Court  cites  Penhallow 
v.  Doane,  3  Dallas,  page  93. 

The  Court  then  proceeds  to  show  that  the  term 
has  been  used  in  our  Constitution  in  three  distinct 
/  senses,  as  follows: 

(i)  In  the  Constitution  the  term  "state"  most 
frequently  expresses  the  combined  idea  just  noticed 
of  people,  territory,  and  government.  A  state,  in 
the  ordinary  sense  of  the  Constitution,  is  a  politi- 
cal community  of  free  citizens,  occupying  a 

1  7  Wallace,  700 . 


76    Interpretation  of  Political  Theory 

territory  of  defined  boundaries,  and  organized 
under  a  government  sanctioned  and  limited  by  a 
written  constitution,  and  established  by  the  con- 
sent of  the  governed.  It  is  the  union  of  such  states 
under  a  common  constitution  which  forms  the 
distinct  and  greater  political  unit,  which  that 
Constitution  designates  as  the  United  States,  and 
makes  the  people  and  states  which  compose  it  one 
people  and  one  country. 

(2)  It  is  also  used  in  its  geographical  sense,  as 
in  the  clauses  which  require  that  a  representative 
in  Congress  shall  be  an  inhabitant  of  the  state  in 
which  he  shall  be  chosen,  and  that  the  trial  of 

,  crimes    shall    be   held    within    the    state   where 
i  commit  ted. 

(3)  "And  there  are  instances  where  the  princi- 
pal sense  of  the  word  seems  to  be  that  primary 
one  to  which  we  have  adverted,  of  a  people  or 
political  community,  as  distinguished  from  a  gov- 
ernment, as  in  the  clause  that  guarantees  to  every 
State  in  the  Union  a  republican  form  of  govern- 
ment.    In  this  clause  a  plain  distinction  is  made 
between  a  state  and  the  government  of  a  state." 

The  nature  and  growth  of  the  nation  into  the 
state  is  described  as  follows: 

"The  union  of  the  States  was  never  a  purely 
artificial  and  arbitrary  relation.  It  began  among 
the  Colonies,  and  grew  out  of  common  origin, 
mutual  sympathies,  kindred  principles,  similar  in- 
terests, and  geographical  relations.  It  was  con- 
firmed and  strengthened  by  the  necessities  of  war, 


/ 


Nature  of  the  Federal  Union        77 


and  received  definite  form  and  character,  and  sanc- 
tion from  the  Articles  of  Confederation.  By  these 
the  Union  was  solemnly  declared  'to  be  perpetual.' 
And  when  these  Articles  were  found  to  be  inade- 
quate to  the  exigencies  of  the  country,  the  Consti- 
tution was  ordained  'to  form  a  more  perfect 
Union.'  It  is  difficult  to  convey  the  idea  of  in- 
dissoluble unity  more  clearly  than  by  these  words. 
What  can  be  indissoluble  if  a  perpetual  Union, 
made  more  perfect,  is  not?  The  Constitution,  in 
all  its  provisions,  looks  to  an  indestructible  Union, 
composed  of  indestructible  States.  When,  therefore 
Texas  became  one  of  the  United  States,  she  entered 
into  an  indissoluble  relation.  All  the  obligations 
of  perpetual  Union,  and  all  the  guarantees  of 
republican  government  in  the  Union,  attached  at 
once  to  the  State.  The  union  between  Texas  and 
the  other  States  was  as  complete,  as  perpetual, 
and  as  indissoluble  as  the  union  between  the 
original  States.  There  was  no  place  for  recon- 
sideration, or  revocation,  except  through  revolu- 
tion, or  through  consent  of  the  States." 

The  effect  of  this  decision  is  to  give  to    the 

Federal  Government  the  supreme  right  to  the 

title  of  "The  State."    "The  separate  'States'  of 

the  American  Union  are  not  states  in  the  technical 

i  sense  of  the  term,  since  each  forms  part  of  the 

\  single  entirety  known  as  the  United  States.    The 

\United  States  as  a  totality  constitutes  a  state; 

fhe  'State'  of  Massachusetts  does  not."1 

The  nature  and  strength  of  the  National  Union 
was  discussed  from  a  different  view -point  by  Jus- 
1  Leacock's  Elements  of  Political  Science,  p.  14. 


78    Interpretation  of  Political  Theory 

tice  Swayne  in  delivering  the  opinion  in  the  case 
of  White  v.  Hart  and  Davis. l 

"The  National  Constitution  was,  as  the  preamble 
recites,  ordained  and  established  by  the  people  of 
the  United  States.  It  created  not  a  confederacy 
of  States,  but  a  government  of  individuals.  It 
assumed  that  the  Government  and  the  Union, 
which  it  created,  and  the  States  which  were  incor- 
porated into  the  Union,  would  be  indestructible 
and  perpetual;  and  as  far  as  human  means  could 
accomplish  such  a  work,  it  intended  to  make  them 
so.  The  government  of  the  Nation  and  the  govern- 
ment of  the  States  are  each  alike  absolute  and 
independent  of  each  other  in  their  respective 
spheres  of  action ;  but  the  former  is  as  much  a  part 
of  the  Government  of  the  people  of  each  State, 
and  is  as  much  entitled  to  their  allegiance  and 
obedience  as  their  own  State  governments — 'the 
Constitution  of  the  United  States  and  the  laws 
made  in  pursuance  thereof  being  in  all  cases 
when  they  apply  the  supreme  law  of  the  land.  For 
all  the  purposes  of  the  National  Government,  the 
people  of  the  United  States  are  a  composite 
mass,  and  their  unity  and  identity,  in  this  view  of 
the  subject,  are  not  affected  by  their  segregation 
by  State  lines  for  the  purposes  of  State  govern- 
ment and  local  administration.  Considered  in  this 
connection,  the  States  are  organisms  for  the  per- 
formance of  their  appropriate  functions  in  the 
vital  system  of  the  larger  policy,  of  which,  in 
this  aspect  of  the  subject,  they  form  a  part, 
and  which  would  perish  if  they  were  all  stricken 
from  existence  or  ceased  to  perform  their  allotted 
work." 

1  13  Wallace,  646. 


Nature  of  the  Federal  Union        79 

In  conformity  to  this  decision  the  Republican 
platform  of  1880  in  its  second  plank  declared  that 

"The  .Constitution  of  the  United  States  is  a 
supreme  law  of  the  land  and  not  a  mere  contract. 
Out  of  confederated  States  it  made  a  sovereign 
Nation.  Some  powers  are  denied  to  the  Nation, 
while  others  are  denied  to  the  States;  but  the 
boundary  between  the  powers  delegated  and  those 
reserved  is  to  be  determined  by  the  National,  and 
not  by  the  State  tribunals.  " 

Based  on  the  views  contained  in  the  decisions 
cited  above,  we  find  the  first  platform  demands 
on  the  subject  of  the  regulation  of  interstate 
commerce  in  the  platforms  of  1884.  Both  of  the 
leading  parties  saw  a  solution  to  the  problem  of 
the  evils  growing  out  of  monopolistic  corporations 
in  the  extended  powers  bestowed  or  recognized  in 
the  National  Government.  The  Democratic  plat- 
form of  1884,  upon  which  Cleveland  was  nominated 
and  elected  President,  declared  the  party  favorable 
to  legislation  that  would  lead  "to  the  prevention 
of  monopoly  and  the  strict  enforcement  of  indi- 
vidual rights  against  corporate  abuses."  The  Re- 
publican platform  of  the  same  year  contained  the 
following  unequivocal  declarations :  ' '  We  recognize 
the  regulation  of  commerce  with  foreign  nations 
and  between  the  States  as  one  of  the  most  im- 
portant prerogatives  of  the  General  Government," 
and  that  "the  principle  of  public  regulation  of 
railway  corporations  is  a  salutary  one  for  the  pro- 


8o    Interpretation  of  Political  Theory 

tection  of  all  the  people;  and  we  favor  legislation 
that  shall  prevent  unjust  discriminations  and  ex- 
cessive charges  for  transportation. " 

While  the  courts  had  recognized  the  right  of 
Congress  to  legislate  concerning  waterways1  from 
a  very  early  date,  it  seems  that  the  power  of 
Congress  over  land  transportation  had  been  some- 
what in  doubt.  But  the  newer  meaning  given  to 
the  Constitution,  and  the  doctrine  of  loose  con- 
struction which  had  long  been  recognized,  made 
it  possible  for  Federal  legislation  to  remedy  the 
abuse  of  power  by  private  corporations,  which  had 
grown  in  wealth  and  influence  since  the  time  when 
the  states  first  began  to  pass  general  incorporation 
acts  in  1850. 

The  attitude  of  the  Supreme  Court  on  the  ques- 
tion was  further  evidenced  by  their  decision  in  the 
case  of  Robbins  v.  Shelby  County  Taxing  Dis- 
trict, 2  which  held  thai;  we  were  but  one  country, 
and  must  be  subject  to  one  system  of  regulations, 
and  not  to  a  multitude  of  such  systems,  with 
reference  to  interstate  commerce.  This  decision 
was  rendered  in  1886,  and  shortly  thereafter,  the 
Court  handed  down  its  decision  in  the  Wabash 
case, 3  which  denied  to  a  state  the  power  to  control 
or  regulate  interstate  shipments. 

So  on  February  4,  1887,  Congress  passed  "the 
Cullom  Act,"  otherwise  known  as  "the  Interstate 
Commerce  Act,"  for  the  regulation  of  interstate 

x  See  Gibbons  v.  Ogden,  9  Wheaton,  i. 

•  120  U.S.,  489.  3 1 18  U.  S.,  564. 


Nature  of  the  Federal  Union        81 

railway  traffic.  As  was  to  be  expected  from  pre- 
vious decisions,  no  serious  questions  arose  as  to  the 
constitutionality  of  the  act.  The  Supreme  Court 
defined  its  attitude  with  reference  to  the  act  in 
the  Import  Rate  case. * 

"  As  the  powers  of  States  were  restricted  to  their 
own  territories  and  did  not  enable  them  efficiently 
to  control  the  management  of  great  corporations 
whose  roads  extend  throughout  the  entire  country, 
there  was  a  general  demand  that  Congress,  in  the 
exercise  of  plenary  power  over  the  subject  of 
foreign  and  interstate  commerce,  should  deal  with 
the  evils  complained  of  by  a  general  enactment,  and 
the  statute  in  question  was  the  result." 

The  constitutionality  of  the  Interstate  Com- 
merce Act,  for  the  regulation  of  interstate  rail- 
ways, led  Congress  to  infer  the  right  to  regulate 
any  corporation  or  trust  engaged  in  interstate 
commerce.  So  in  1890,  Congress  passed  the 
Sherman  Anti-Trust  Act,  which  penalized  all 
illegal  acts  of  corporations,  the  illegal  acts  being 
defined  in  the  act  itself.  This  act  was  questioned 
on  the  ground  that  it  violated  the  freedom  of  con- 
tract guaranteed  by  the  Fifth  Amendment  to  the 
Constitution  of  the  United  States.  But  the  Su- 
preme Court  in  many  decisions  has  upheld  the 
constitutionality  of  this  act  also. 2 

1 162  United  States,  211. 

1  See  U.  S.  v.  Joint  Traffic  Association,  171  United  States,  505; 
Addyson  Pipe  and  Steel  Company  v.  U.  S.,  175  U.  S.,  211;  and 
Judson  on  Interstate  Commerce. 
6 


82     Interpretation  of  Political  Theory 

It  is  impossible  to  correctly  estimate  or  define 
the  growth  of  centralization  in  our  National  Gov- 
ernment in  recent  times.  Since  the  Civil  War,  the 
three  departments  of  Government  have  worked 
hand  in  hand  in  this  extension.  We  are  far  away 
from  the  conception  the  Fathers  had  of  the  powers 
of  the  Federal  Union  in  1800,  and  nothing  gives 
evidence  of  this  fact  more  conclusively  than  the 
effects  of  the  Federal  laws  governing  corporate 
wealth.  The  full  effect  of  these  laws  has  not  yet 
been  realized  by  the  people;  either  in  their  own 
application  or  in  their  influence  on  the  future 
legislation  of  the  country.  Whether  these  future 
laws  will  prove  helpful  or  detrimental,  will  depend 
on  the  clearness  with  which  our  lawmakers  see 
the  necessity  of  providing  for  national  develop- 
ment  without  destroying  the  identity  of  our 
organic  structure.  On  this  point  Bluntschli  has 

offered  a  principle  of  guidance  of  great  value: 

/' 

f 

"A  nation  outlives  the  changing  phases  of  its 
development,  and  although  it  remains  essentially 
the  same,  yet  its  needs  and  views  alter  with  the 
periods  of  its  life.  A  national  and  popular  state 
adapts  its  organism  to  the  continual  development 
of  the  nation,  but  without  completely  losing  its 
identity. " 


CHAPTER  IV 

IMPERIALISM   V.   EXPANSION 

PREVIOUS  to  the  issue  that  grew  out  of  the 
annexation  of  Hawaii,  the  American  people 
accepted  with  great  equanimity  the  Gladstone 
doctrine  "that  the  sea  was  a  divider  and  not  a 
uniter  of  nations. "  The  issue  was  late  in  develop- 
ing in  this  country  because  of  the  large  area  that 
remained  unoccupied  in  the  West.  Not  until  we 
had  extended  our  power  as  a  nation  to  the  shore 
line  of  the  Pacific  and  had  begun  to  look  out  over 
the  Pacific  did  expansion  develop  into  imperialism. 
The  same  influence  that  carried  the  trapper  and 
adventurer  to  the  West  in  an  early  day,  carried 
this  same  class  to  the  Hawaiian  Islands  when  the 
West  was  settled.  The  native  was  taught  the 
blessings  of  commerce  by  these  traders,  the  bless- 
ings of  Christianity  were  soon  carried  by  the  mis- 
sionary, and  these  two  forces  made  logical  and  easy 
the  hoisting  of  the  American  flag.  These  were  the 
steps  by  which  we  first  set  the  precedent  upon 
which  to  build  an  imperialistic  government. 

Expansion  was  a  problem  before  imperialism 
was  thought  of.  By  what  authority,  and  in  what 
manner,  we  were  to  govern  territory  purchased 

83 


.  84    Interpretation  of  Political  Theory 

since  the  adoption  of  the  Constitution,  has  been  a 
serious  and  important  problem  in  our  govern- 
mental history.  The  question  first  arose  when 
Louisiana  was  purchased  from  France.  As  has 
been  previously  shown,  President  Jefferson  seri- 
ously doubted  executive  or  legislative  power  to  ac- 
quire by  purchase  any  territory  for  the  purpose  of 
making  it  a  part  of  the  United  States.  So  firmly 
was  he  convinced  of  this  fact,  that,  when  nego- 
tiations were  under  way  for  this  territory,  he 
instructed  Livingston  not  to  assert  that  this  terri- 
tory was  to  be  incorporated  as  a  part  of  the  United 
States,  for  he  thought  such  a  provision  would  be 
illegal.  Through  the  insistence  of  Bonaparte, 
Livingston  disobeyed  instructions  and  approved 
the  third  section  of  the  treaty  which  reads  as 
follows:  "That  the  inhabitants  of  the  ceded  terri- 
tory shall  be  incorporated  into  the  Union  of  the 
United  States,  and  admitted  as  soon  as  possible, 
according  to  the  principles  of  the  Federal  Con- 
stitution, to  the  enjoyment  of  all  the  rights,  ad- 
vantages, and  immunities  of  citizens  of  the  United 
States. " 

Jefferson's  views  on  the  subject  were  clearly 
presented  in  a  letter  to  Senator  Breckenridge  of 
Kentucky,  dated  August  12,  1803.  He  said: 

"This  treaty  must,  of  course,  be  laid  before  both 
Houses,  because  both  have  important  functions  to 
exercise  respecting  it.  They,  I  presume,  will  see 
their  duty  to  their  country  in  ratifying  and  pay- 
ing for  it,  so  as  to  secure  a  good  which  would 


Imperialism  v.  Expansion          85 

otherwise  probably  be  never  again  in  their  power. 
But  I  suppose  they  must  then  appeal  to  the  Nation 
for  an  additional  article  to  the  Constitution  ap- 
proving and  confirming  an  act  which  the  Nation 
had  not  previously  authorized.  The  Constitution 
has  made  no  provision  for  holding  foreign  territory, 
still  less  for  incorporating  foreign  nations  into  our 
Union." 

Jefferson  himself  prepared  two  amendments  to 
the  Constitution,  the  first  of  which  declared  "The 
province  of  Louisiana  is  incorporated  with  the 
United  States  and  made  a  part  thereof,"  and  the 
second  defining,  in  general  terms,  the  rights  of  the 
citizens  of  the  territory.  But  for  some  reason 
this  matter  was  never  pressed,  and  these  amend- 
ments were  never  submitted  to  the  people  for 
ratification. r 

When  bills  were  introduced  into  Congress  to 
provide  the  purchase  money,  and  also  a  civil 
government  for  this  territory,  the  constitutional- 
ity of  incorporating  Louisiana  into  the  Union  was 
vigorously  debated.  But  the  administration  forces 
won  on  the  ground  that  under  the  treaty-making 
power  Congress  could  acquire  territory  and  hold 
it  under  the  laws  of  Congress  and  the  Constitution. 
This  question  was  not  adjudicated  by  the  courts 
at  this  time. 

;In  1819,  Florida-  was  purchased  from  Spain. 
Three  years  later  Congress  passed  a  series  of  acts 
ror  the  government  of  the  territory.  The  relation 

!  Jefferson's  Writings,  vol.  viii.,  p.  269. 


86    Interpretation  of  Political  Theory 

of  this  territory  to  the  states  and  the  Constitution 
was  discussed  by  the  Supreme  Court  in  American 
Insurance  Company  v.  356  Bales  of  Cotton.  *  Mr. 
Justice  Johnson,  of  the  Supreme  Court,  presided 
over  the  Circuit  Court,  and  delivered  this  opinion. 
He  said : 

"  It  becomes  indispensable  to  the  solution  of 
these  difficulties  that  we  should  conceive  a  just 
idea  of  the  relation  in  which  Florida  stands  to 
the  United  States.  The  question  now  to  be  con- 
sidered relates  to  territories  previously  subject 
to  the  acknowledged  jurisdiction  of  another  sov- 
ereignty, such  as  was  Florida  to  the  Crown  of 
Spain.  And  on  this  subject  we  have  the  most 
explicit  proof  that  the  understanding  of  our  public 
functionaries  is  that  the  Government  and  laws  of 
the  United  States  do  not  extend  to  such  territory 
by  the  mere  act  of  cession." 
/ 

On  appeal  from  the  decision  of  the  Circuit  Court 
to  the  Supreme  Court,  Marshall  held  that  Florida 
upon  the  ratification  of  the  treaty  became  a  terri- 
tory of  the  United  States  and  subject  to  the  power 
of  Congress  under  the  territorial  clause. 2 

In  Dred  Scott  v.  Sanford3  the  Court  carefully 
considered  the  power  of  Congress  under  the  Con- 
stitution to  acquire  territory  outside  of  the  original 
limits  of  the  United  States,  and  what  powers  might 
be  exercised  therein  over  persons  and  property. 
The  Court  used  this  language : 

1 1  Peters,  511.       *  Constitution,  Art.  IV.,  Sec.  III.,  par.  2. 
» 19  Howard,  393. 


Imperialism  v.  Expansion          87 

"  There  is  certainly  no  power  given  by  the  Con- 
stitution to  the  Federal  Government  to  establish 
or  maintain  colonies  bordering  on  the  United 
States  or  at  a  distance,  to  be  ruled  and  governed 
at  its  own  pleasure;  and  if  a  new  State  is  admitted, 
it  needs  no  further  legislation  by  Congress,  be- 
cause the  Constitution  itself  defines  the  relative 
rights  and  powers  and  duties  of  the  State,  and  the 
citizens  of  the  State,  and  the  Federal  Government. 
But  no  power  is  given  to  acquire  territory  to  be 
held  and  governed  permanently  in  that  character." 

The  territorial  clause  of  the  Federal  Constitu- 
tion was  cited  by  the  Supreme  Court  eight  times 
before  the  date  of  the  acquisition  of  our  first 
insular  territory.  The  general  rule  might  be  de- 
duced from  all  these  opinions  to  the  effect  that 

r 

"Congress  has  absolute  power  to  govern  the 
territories  of  the  United  States,  whether  that 
power  is  incident  to  its  capacity  to  acquire  terri- 
tory as  a  sovereign,  or  whether  it  is  derived  from 
the  provisions  of  this  clause  which  gives  to  Con- 
gress power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory  or 
other  property  belonging  to  the  United  States."1 

As  to  the  power  to  acquire  territory,  the  Su- 
preme Court  has  taken  the  following  position: 
"The  Constitution  confers  absolutely  upon  the 
Government  of  the  Union  the  powers  of  making 
war  and  of  making  treaties;  consequently,  that 

1  See  Boutwell's  Tine  Constitution  of  the  United  States  at  the  end 
of  the  First  Century,  chapter  xliii. 


88    Interpretation  of  Political  Theory 

Government  possesses  the  power  of  acquiring  ter- 
Iritory  either  by  conquest  or  by  treaty."1  This 
doctrine  was  also  proclaimed  in  the  Dred  Scott 
case,  the  Court  taking  the  view,  however,  that, 
while  territory  could  be  legally  acquired,  it  must 
be  acquired  for  the  purpose  of  finally  admitting 
the  territory  into  the  Union  as  states,  and  not 
with  the  view  of  holding  it  permanently  as  a 
colonial  possession,  as  has  been  shown  above. 
Pomeroy  says2: 


"  Indeed,  none  but  those  who  would  interpret 
the  Constitution  as  though  it  were  a  penal  statute 
have  ever  doubted  the  authority  of  the  Nation, 
through  some  one  of  its  governmental  agents,  to 
acquire  new  territory  and  add  it  to  the  domain  of 
the  United  States.  Congress  may  declare  war, 
and  the  President,  as  commander-in-chief,  may 
wage  war.  One  of  the  most  common  results  of 
war  is  conquest ;  and  unless  the  wars  of  this  coun- 
try are  to  be  carried  on  differently  from  those  of 
other  nations,  and  unless  we  are  to  be  deprived 
of  the  advantages  of  success,  the  possibility  of 
conquest  must  be  considered  as  included  within 
the  capacity  to  declare  and  wage  war.  The  Presi- 
dent, with  the  advice  and  consent  of  two  thirds 
of  the  Senate,  may  make  treaties.  No  kinds  of 
treaties  are  specified;  no  limitations  are  placed; 
the  language  is  as  broad  as  possible;  indeed,  these 
international  compacts  are  expressly  declared  to  be 
the  supreme  law  of  the  land.  No  species  of  treaty 
is  more  common  than  that  of  cession;  and  unless 

1  American  Insurance  Co.  v.  Canter,  i  Peters,  511. 
1  Constitutional  Law,  p.  397,  Bennett's  Edition. 


Imperialism  v.  Expansion          89 

we  would  interpolate  a  restriction  which  the  lan- 
guage of  the  Constitution  does  not  require,  and 
thereby  place  the  United  States  in  a  condition  of 
1  inferiority  to  all  other  countries,  we  must  admit 
1  that  territory  may  be  acquired  by  treaty." 

»  This  settled  doctrine  was  somewhat  disturbed 
lin  1893,  when  the  question  of  the  annexation  of 
\Hawaii  began  to  be  agitated.  This  island  had 
enjoyed  favorable  commercial  rights  with  us  since 
1876.  When  in  1893  a  revolution  was  precipitated 
which  resulted  in  the  dethronement  of  the  Queen, 
and  a  republic  was  established,  serious  discussion 
arose  with  reference  to  annexation  to  the  United 
States.  While  negotiations  were  under  consid- 
eration for  annexation,  an  American  protectorate 
was  declared,  and  a  commission  was  appointed  to 
visit  the  island  and  investigate  conditions.  When 
this  commission  made  its  report,  President  Cleve- 
land, who  opposed  annexation,  dissolved  the  pro- 
tectorate and  Hawaii  was  recognized  as  a  republic 
by  the  United  States. 

When  the  campaign  of  1896  came  on,  the  Dem- 
ocrats opposed,  while  the  Republicans  favored, 
the  annexation  of  the  islands  of  Hawaii.  The 
Republican  platform  declared:  "Our  foreign  pol- 
icy should  be  always  firm,  vigorous,  and  dignified, 
and  all  our  interests  in  the  Western  Hemisphere 
carefully  watched  and  guarded.  The  Hawaiian 
Islands  should  be  controlled  by  the  United  States, 
and  no  foreign  power  should  be  permitted  to 
interfere  with  them."  The  election  of  McKinley 


90    Interpretation  of  Political  Theory 

upon  this  platform  insured  the  incorporation  of 
Hawaii  as  a  part  of  the  United  States.  This  was 
effected  on  July  7,  1898,  and  two  years  later  the 
islands  were  organized  as  a  territory  of  the  United 
States.  President  McKinley  followed  court  and 
judicial  precedent  in  his  message  to  Congress  on 
December  3,  1901,  when  he  said: 

"In  Hawaii  our  aim  must  be  to  develop  the 
Territory  on  the  traditional  American  lines.  We 
do  not  wish  a  region  of  large  estates  tilled  by 
cheap  labor;  we  wish  a  healthy  American  com- 
munity of  men  who  themselves  till  the  farms  they 
own.  All  our  legislation  for  the  islands  should 
be  shaped  with  this  end  in  view." 

Three  months  after  the  annexation  of  Hawaii, 
the  Peace  Commission  appointed  by  the  American 
and  Spanish  Governments  met  in  Paris  to  conclude 
the  terms  of  peace  resulting  from  the  Spanish- 
American  War.  As  a  result  of  their  deliberations, 
(i)  Spain  recognized  the  freedom  of  Cuba;  (2) 
Porto  Rico  and  Guam  were  ceded  to  the  United 
States;  and  (3)  for  a  consideration  of  $20,000,000, 
the  Philippines  were  acquired  by  the  United  States. 
When  the  question  of  ratifying  this  treaty  came 
up  in  the  Senate,  the  most  violent  opposition  grew 
out  of  the  purchase  of  the  Philippine  Islands.  It 
was  believed  that  instead  of  proving  an  aid,  these 
islands  would  become  a  real  burden  to  the  coun- 
try. But  the  treaty  was  finally  ratified  without 
modification,  and  we  took  the  step  that  carried 


Imperialism  v.  Expansion          91 

us  from  a  position  of  healthy  expansion  to  that  of 
an  imperialistic  empire. 

"Imperialism"  was  declared  by  the  Democrats 
in  their  platform  of  1900  to  be  the  "paramount 
issue. " 

"We  are  not  opposed  [said  their  platform]  to 
territorial  expansion  when  it  takes  in  desirable 
territory  which  can  be  created  into  States  in  the 
Union,  and  whose  people  are  willing  and  fit  to 
become  American  citizens.  We  favor  expansion 
by  every  peaceful  and  legitimate  means.  But  we 
are  unalterably  opposed  to  the  seizing  of  distant 
islands  to  be  governed  outside  the  Constitution, 
and  whose  people  can  never  become  citizens." 

The  Republican  platform  made  no  reference  to 
the  subject  further  than  to  call  attention  to  the 
fact  that  we  had  acquired  the  Philippines  as  a 
result  of  the  Treaty  of  Paris.  But  their  platform 
declared,  with  reference  to  the  Philippine  people, 
that  "  The  largest  measure  of  self-government  con- 
sistent with  their  welfare  and  our  duties  shall  be 
secured  to  them  by  law. " 

But  the  deeper  enthusiasm  of  the  Republican 
party  was  revealed  in  the  keynote  speech  of 
Senator  Beveridge  in  opening  the  Republican 
campaign  in  Chicago  on  the  25th  day  of 
September,  1900.  He  used  this  language: 

"When  an  English  ship,  laden  with  English  goods, 
bound  for  the  Orient,  sails  westward,  her  first 
sight  of  land  will  be  Porto  Rico — and  Cuba,  also, 


92    Interpretation  of  Political  Theory 

as  I  hope — with  the  Stars  and  Stripes  above  them. 
As  it  passes  through  the  wedded  waters  of  the 
Isthmian  Sea,  still  the  Stars  and  Stripes  above 
them.  Half-way  across  that  great  American  ocean 
known  as  the  Pacific,  the  first  port  of  call  and 
exchange  will  be  the  Islands  of  Hawaii,  with  the 
Stars  and  Stripes  above  them.  And  farther  west, 
as  the  land  of  sunrise  and  sunset  lifts  before  the 
eyes  of  the  crew  of  that  merchantman,  they  will 
behold  glowing  in  the  heavens  of  the  east  still 
again,  and  still  forever,  those  Stars  and  Stripes  of 
glory.  And  if  that  ship  sets  sail  from  Australia 
for  Japan,  it  must  stop  and  trade  in  ports  of  the 
greatest  commercial  stronghold  in  the  world,  the 
Philippine  Islands,  with  the  Stars  and  Stripes 
above  each  one  of  them." 

The  effect  of  this  speech  was  to  commit  formally 
the  Republican  party  to  the  doctrine  of  imperial- 
ism, and  to  attract  the  attention  of  the  whole 
country  to  this  as  an  issue. 

The  speech  of  Senator  Beveridge  was  in  perfect 
harmony  with  the  platform  of  the  Republican 
party  in  that  year.  A  strong  plank  was  incor- 
porated on  the  policy  of  the  party  with  reference 
to  the  territory  acquired  through  the  acceptance 
of  the  Treaty  of  Paris,  in  which  it  was  asserted 
that  "Our  authority  could  not  be  less  than  our 
responsibility, "  and  that  the  responsibility  before 
the  world  was  to  determine  for  these  in  our  new 
possessions  the  measure  of  self-government  they 
could  best  use.  The  Democratic  platform  was 
still  more  emphatic  in  declaring  opposition  to  the 
doctrine.  It  was  declared  that  "The  Constitution 


Imperialism  v.  Expansion          93 

follows  the  Flag,"  and  the  platform  further  de- 
nounced the  doctrine  that  "an  Executive  or  Con- 
gress deriving  their  existence  and  their  powers 
from  the  Constitution  can  exercise  lawful  au- 
thority beyond  it  or  in  violation  of  it."  The 
platform  further  declared  itself  in  favor  of  the  ac- 
quisition of  desirable  territory,  but  unalterably 
opposed  to  imperialism,  and  declared  this  to  be 
the  paramount  issue.  A  sentence  in  the  message  of 
President  McKinley  sent  to  Congress  on  Decem- 
ber 5,  1899,  which  asserted  that  "As  long  as  the 
insurrection  [in  the  Philippines]  continues,  the 
military  arm  of  the  Government  must  necessarily 
be  supreme, "  furnished  the  material  out  of  which 
the  Democrats  made  a  definition  of  imperialism. 
"Imperialism,"  they  said,  "is  the  policy  of  gov- 
erning colonial  possessions  by  force  in  contrast  to 
a  policy  of  expansion  granting  full  self-government 
to  such  colonies. " 

These  conflicting  doctrines  were  subject  to  a 
speedy  review  by  the  highest  Court  in  the  land 
soon  after  the  inauguration  in  1 901 .  In  the  latter 
days  of  May  of  that  year  the  Supreme  Court 
handed  down  its  decision  in  the  famous  Insular 
Tariff  cases. 1  Justice  Brown  rendered  the  opinion 
in  all  these  cases.  Each  opinion  was  rendered  by 
a  bare  majority  (5  to  4),  Chief  Justice  Fuller 
being  among  the  dissenting  judges.  The  Court 

1  See  De  Lima  v.  Bidwell,  182  U.  S.,  i;  Goetz  v.  U.  S.,  182 
U.  S.,  219;  Dooley  v.  U.  S.,  182  U.  S.,  222;  Armstrong  ».  U.  S., 
182  U.  S.,  243;  and  Downs  v.  U.  S.,  182  U.  S.,  246. 


94    Interpretation  of  Political  Theory 

decided  in  substance  that  the  Constitution  does 
not  necessarily  follow  the  flag,  and  that  Congress 
has  full  power  to  deal  with  our  recently  acquired 
territory  as  it  sees  fit. 

The  insular  cases  were  largely  influenced  by 
three  important  cases  which  were  also  the  result 
of  litigation  over  tariff  duties, — The  United  States 
v.  Rice,1  Fleming  v.  Page,2  and  Cross  v.  Harrison.3 

In  The  United  States  v.  Rice  it  was  held  that 
military  occupation  of  any  territory,  even  if  for  a 
temporary  period,  gave  the  fullest  right  of  sover- 
eignty to  the  country  then  in  possession,  even  if 
the  territory  was  surrendered  later. 

The  case  of  Fleming  v.  Page  was  somewhat  to 
the  converse  of  this.  This  was  an  action  brought 
to  recover  duties  collected  on  goods  imported  from 
Tampico,  Mexico,  when  this  place  was  in  tempo- 
rary occupation  by  the  soldiers  of  the  United 
States.  It  was  held  that  this  town  was  still 
foreign  territory  even  when  occupied  by  our 
soldiers.  Chief  Justice  Taney  observed: 

"The  United  States,  it  is  true,  may  extend  its 
boundaries  by  conquest,  or  treaty,  and  may  de- 
mand the  cession  of  territory  as  the  condition  of 
peace,  in  order  to  indemnify  its  citizens  for  the 
injuries  they  have  suffered,  or  reimburse  the  Gov- 
ernment for  the  expenses  of  the  war.  But  this  can 
only  be  done  by  the  treaty-making  power  con- 
ferred upon  the  President  by  the  declaration  of 
war.  While  it  was  occupied  by  our  troops  they 

1  4  Wheaton,  246.         *  9  Howard,  603.         J  16  Howard,  164. 


Imperialism  v.  Expansion          95 

were  in  an  enemy's  country,  and  not  in  their  own; 
the  inhabitants  were  still  foreigners  and  enemies 
and  owed  to  the  United  States  nothing  more  than 
a  submission  and  obedience  sometimes  called  tem- 
porary allegiance,  which  is  due  from  a  conquered 
enemy,  when  he  surrenders  to  a  force  which  he  is 
unable  to  resist." 

The  third  case  was  that  of  Cross  v.  Harrison. 
This  was  an  action  of  assumpsit  to  recover  money 
that  had  been  paid  Harrison  while  acting  as  col- 
lector for  goods  imported  into  California  from 
foreign  countries  between  the  second  day  of  Febru- 
ary, 1848,  the  date  of  the  treaty  of  peace  between 
the  United  States  and  Mexico,  and  November  13, 
1849,  when  the  collector  was  appointed  by  the 
President  under  an  express  law  of  Congress.  It 
was  insisted  by  the  plaintiff  that  California  was 
not  foreign  territory  after  the  date  of  the  ratifica- 
tion of  the  treaty.  The  opinion  in  this  case 
established  three  propositions : 

"i.  That  under  the  war  power  the  military 
governor  of  California  was  authorized  to  pre- 
scribe a  scale  of  duties  upon  importations  from 
foreign  countries  to  San  Francisco,  and  to  collect 
the  same  through  a  collector  appointed  by  himself, 
until  the  ratification  of  the  treaty  of  peace. 

"2.  That  after  such  ratification,  duties  were 
legally  exacted  under  the  tariff  laws  of  the  United 
States,  which  took  effect  immediately. 

"3.  That  the  civil  government  established  in 
California  continued  from  the  necessities  of  the 
case  until  Congress  provided  a  territorial  govern- 
ment." 


96    Interpretation  of  Political  Theory 

It  will  be  seen  that  the  three  propositions  in- 
volve the  recognition  of  the  fact  that  California 
became  domestic  territory  immediately  upon  the 
ratification  of  the  treaty,  or,  to  speak  more  accu- 
rately, as  soon  as  this  was  officially  known  in 
California.  The  doctrine  that  a  port  ceded  to, 
and  occupied  by  us,  does  not  lose  its  foreign 
character  until  Congress  has  acted,  and  a  collector 
is  appointed,  was  distinctly  repudiated  with  the 
apparent  acquiescence  of  Chief  Justice  Taney,  who 
wrote  the  opinion  in  Fleming  v.  Page. 

This  was  the  status  of  the  question  when  the 
insular  cases  came  up  for  trial.  In  De  Lima  v. 
Bidwell  the  suit  was  the  result  of  an  attempt  to 
recover  money  paid  as  duty  on  sugar  shipped  from 
Porto  Rico.  The  only  question  was  whether  Porto 
Rico  was  a  foreign  country  at  the  time  the  sugar 
was  shipped.  The  tariff  act,  under  review,  pro- 
vided that  "there  shall  be  levied,  collected,  and 
paid  upon  all  articles  imported  from  foreign 
countries,  duties,"  etc. 

The  Court  began  by  citing  the  cases  of  United 
States  v.  Rice,  Fleming  v.  Page,  and  Cross  •  v. 
Harrison  from  which  the  following  conclusion  was 
drawn : 

"  It  is  evident  that,  from  1803,  the  date  of  Mr. 
Gallatin's  letter,  to  the  present  time,  there  is  not  a 
shred  of  authority  except  the  dictum  in  Fleming 
v.  Page  (practically  overruled  in  Cross  v.  Harri- 
son) for  holding  that  a  district  ceded  to  and  in  the 
possession  of  the  United  States  remains  for  any 


Imperialism  v.  Expansion          97 

purpose  a  foreign  country.  Both  of  these  condi- 
tions must  exist  to  produce  a  change  of  nationality 
for  revenue  purposes.  Possession  is  not  alone 
sufficient,  as  was  held  in  Fleming  v.  Page;  nor  is  a 
treaty  ceding  such  territory  sufficient  without  a 
surrender  of  possession.  Keens  v.  McDonough, 
8  Peters,  308;  Pollard's  Heirs  v.  Kibbe,  14  Peters, 
353,  406;  Hallett  v.  Hunt,  7  Ala.,  882,  899;  The 
Anna,  5  Rob.,  97.  The  practice  of  the  executive 
departments  thus  continued  for  more  than  half  a 
century,  is  entitled  to  great  weight,  and  should  not 
be  disregarded  nor  overturned  except  for  cogent 
reasons,  and  unless  it  be  clear  that  such  construc- 
tion be  erroneous.  U.  S.  v.  Johnston,  124  U.  S., 
236,  and  other  cases  cited." 

The  Court  then  proceeds  to  show  that  foreign 
territory  could  be  both  ceded  and  acquired  through 
the  power  given  to  Congress  and  the  Executive 
to  make  treaties,  and  acquired  "as  absolutely  as 
if  the  annexation  were  made,  as  in  the  case  of 
Texas  and  Hawaii,  by  an  act  of  Congress.  So  by 
the  ratification  of  the  Treaty  of  Paris  the  island 
became  territory  of  the  United  States,  although 
not  an  organized  territory  in  the  technical  sense  of 
the  word." 

Can  a  country  become  domestic  territory  for 
one  purpose  and  foreign  for  another?  The  Court 
answers  in  the  negative. 

"  The  theory  that  a  country  remains  foreign  with 
respect  to  the  tariff  laws  until  Congress  has  acted 
by  embracing  it  within  the  customs  union,  pre- 
supposes that  a  country  may  be  domestic  for  one 
purpose  and  foreign  for  another.  It  may  un- 


98    Interpretation  of  Political  Theory 

doubtedly  become  necessary  for  the  adequate 
administration  of  a  domestic  territory  to  pass  a 
special  act  providing  the  proper  machinery  and 
officers,  as  the  President  would  have  no  authority, 
except  under  the  war  power,  to  administer  it 
himself,  but  no  act  is  necessary  to  make  a  domestic 
territory  if  once  it  had  been  ceded  to  the  United 
States.  We  express  no  opinion  as  to  whether 
Congress  is  bound  to  appropriate  money  to  pay 
for  it.  This  has  been  much  discussed  by  writers 
upon  Constitutional  law,  but  it  is  not  necessary 
to  consider  it  in  this  case,  as  Congress  made 
prompt  appropriation  of  the  money  stipulated  in 
the  treaty.  This  theory  also  presupposes  that 
territory  may  be  held  indefinitely  by  the  United 
States;  that  it  may  be  treated  in  every  particular, 
except  for  tariff  purposes,  as  domestic  territory; 
that  laws  may  be  enacted  and  enforced  by  officers 
of  the  United  States  sent  there  for  that  purpose; 
that  insurrection  may  be  suppressed,  wars  carried 
on,  revenues  collected,  taxes  imposed, — in  short, 
everything  can  be  done  which  a  government  can 
do,  within  its  own  boundaries, — and  yet  that 
territory  may  still  remain  a  foreign  country. 
That  this  state  of  things  may  continue  for  years, 
for  a  century  even,  but  that  it  still  remains  a  for- 
eign country.  To  hold  that  this  can  be  done  as  a 
matter  of  lawwe  deem  to  be  pure  judicial  legislation. 
"We  are  therefore  of  the  opinion  that  at  the 
time  these  duties  were  levied  Porto  Rico  was  not 
a  foreign  country  within  the  meaning  of  the  tariff 
laws  but  a  territory  of  the  United  States,  that  the 
duties  were  illegally  exacted,  and  that  the  plaintiffs 
are  entitled  to  recover  them  back." 

Mr.  Justice  McKenna  filed  a  dissenting  opinion 
in  this  case,  in  which  Justices  Shiras  and  White 


Imperialism  v.  Expansion          99 

concurred.  He  declared  that  Porto  Rico  "occupied 
a  relation  to  the  United  States  between  that  of 
being  a  foreign  country  absolutely  and  of  being 
a  domestic  territory  absolutely."  "  This  view, " 
said  Justice  McKenna,  "vindicates  the  Govern- 
ment from  national  and  international  weaknesses. 
It  exhibits  the  Constitution  as  a  charter  of  great 
and  vital  authorities,  with  limitations  indeed,  but 
with  such  limitations  as  serve  and  assist  gov- 
ernment, not  destroy  it."  In  Goetz  v.  United 
States1  and  Grossman  v.  United  States2  the  same 
question  was  in  issue  as  that  in  De  Lima  v. 
Bidwell,  and  was  similarly  decided. 

In  the  cases  of  Dooley  v.  United  States  and 
Armstrong  v.  United  States3  the  converse  of  the 
preceding  cases  was  involved.  The  question  was, 
had  Congress  the  right  to  lay  duties  on  goods 
shipped  into  Porto  Rico.  The  question  turned  on 
the  meaning  of  the  "United  States"  as  used  in  our 
Constitution.  Did  the  term  include  the  territories 
and  colonies  subsequently  acquired  by  the  United 
States?  In  the  case  of  Dooley  v.  United  States, 
the  majority  of  the  Court  held  that  our  tariff  laws 
began  to  operate  on  import  duty  in  Porto  Rico 
when  the  treaty  of  peace  was  ratified,  and  recipro- 
cally from  the  same  date  the  right  to  collect 
import  duties  from  the  United  States  into  that 
island  ceased. 

The  same  question  was  decided  with  reference 
to  the  Philippines  in  the  case  of  Fourteen  Diamond 

1 182  U.  S.,  221.        » 182  U.  S.,  222.       » 182  U.  S.,  243. 


ioo  Interpretation  of  Political  Theory 

Rings  v.  United  States.1  This  case  involved  the 
constitutionality  of  an  act  laying  a  duty  on  goods 
imported  into  the  United  States  from  the  Philip- 
pine Islands.  The  Philippines  at  that  time  occu- 
pied a  somewhat  different  position,  as  they  do  in 
some  respects  to-day,  from  that  of  the  relation  of 
the  island  of  Porto  Rico  to  the  United  States. 
This  was  due  to  two  facts:  (i)  By  the  resolution 
of  the  United  States  Senate,  adopted  by  only  a 
majority,  and  not  a  two-third  majority  vote,  the 
Senate  stated,  "That  by  the  ratification  of  the 
treaty  of  peace  with  Spain  it  is  not  intended  to 
incorporate  the  inhabitants  of  the  Philippine  Is- 
lands into  citizenship  with  the  United  States,  nor 
is  it  intended  to  permanently  annex  said  islands 
as  an  integral  part  of  the  territory  of  the  United 
States";  and  (2)  because  of  the  state  of  insurrec- 
tion that  was  being  waged  by  the  inhabitants  of 
those  islands  against  the  United  States  at  that 
time.  But  in  spite  of  the  difference  in  conditions, 
both  legal  and  martial,  the  Court  followed  their 
decision  in  De  Lima  v.  Bid  well,  and  held  that  the 
tariff  laws  applied  and  were  constitutionally  in  full 
force  and  effect. 

With  this  decision,  the  legal  test  of  our  relation 
to  our  insular  possessions  was  complete.  Im- 
perialism, by  this  opinion,  has  become  an  estab- 
lished doctrine  by  and  through  judicial  decree. 

The  political  and  historical  importance  of  these 
cases  should  lead  to  the  thoughtful  study  of  them 

1 183  u.  S.,  176. 


Imperialism  v.  Expansion         101 

by  every  citizen.  While  it  is  impossible  to  give 
more  of  the  doctrine  discussed  therein,  still  the 
important  summary  of  these  cases  by  Mr.  Walter 
Wellman  gives  a  very  accurate  idea  of  the  leading 
points  covered. 

1"  i.  The  Constitution  does  not  follow  the  flag 
ex  propria  vigor e — of  its  own  force. 

"2.  The  United  States  may  enter  upon  a  co- 
lonial policy — has  already  entered  upon  it — with- 
out violation  of  the  Constitution. 

"  3.  This  Nation  has  all  the  powers  that  right- 
fully belong  to  a  sovereign  international  state  and 
may  acquire  territory  without  incorporating  such 
territory  as  an  integral  part  of  itself. 

"4.  The  simple  act  of  acquisition  by  treaty  or 
otherwise  does  not  automatically  bring  about  such 
incorporation;  and  incorporation  is  effected  only 
by  the  will  of  the  States  acting  consciously  through 
Congress. 

"5.  Pnrtn  Riro  js_nnt.  a  J}grt_nfjjift  United 
States,  but  'a  territory  appurtenant  antf  bfr1nrig- 
mg  to  the  United  States/  Tariffs  established  by 
Congress  upon  goods  coming  from  or  going  to 
Porto  Rico  are  valid  and  collectable.  The  Foraker 
Act  is  constitutional. 

"6.  Congress  has  full  power  over  the  territories, 
may  regulate  and  dispose  of  them,  may  at  its 
discretion  extend  the  Constitution  to  them,  may 
admit  them  as  States,  or  may  hold  them  in- 
definitely as  territories,  colonies,  or  dependencies. 

"7.  Porto  Rico  is  not  a  'foreign  country,'  and 
therefore  the  Dingley  Law,  which  levies  duties 
upon  goods  imported  'from  foreign  countries,' 
does  not  apply  to  Porto  Rico.  Nor  yet  is  '  Porto 
Rico  a  part  of  the  United  States. '  It  is  a  domestic 


io2  Interpretation  of  Political  Theory 

territory  over  which  Congress  has  'unrestricted 
control.'"1 

Putney2  says  with  reference  to  the  logic  of  these 
cases  that : 

"  In  spite  of  the  great  differences  of  opinion  as  to 
the  law  on  the  question  involved  in  these  cases  and 
in  spite  of  the  dissenting  opinions  in  these  cases, 
the  majority  decisions  in  both  of  the  cases  of  De 
Lima  v.  Bidwell  and  Downs  v.  Bidwell,  are  sup- 
ported by  the  unbroken  line  of  decisions  of  the 
Supreme  Court  since  the  adoption  of  the  Constitu- 
tion and  by  the  position  of  the  Executive  Depart- 
ment on  all  occasions  for  the  past  century.  All 
that  stands  opposed  to  these  decisions  (outside 
of  the  dissenting  opinions  in  these  cases  them- 
selves) is  certain  dicta  in  Blake  v.  Loughborough 
and  Fleming  v.  Page  and  the  action  of  the  Execu- 
tive Department  in  the  case  of  Louisiana." 

This  statement  is,  no  doubt,  true.  Nevertheless 
we  find  ourselves,  as  a  result  of  this  latter  day 
application  of  earlier  judicial  dicta,  attempting 
to  control  judicially  under  the  Constitution  at 
least  five  classes  of  dependencies:  (i)  Territories, 
including  Hawaii,  which  have  practically  as  good 
government  as  that  allowed  the  neighboring 
States;  (2)  Territories  under  various  forms  of 
paternal  governments,  as,  e.  g.,  Alaska  and  some 
of  the  smaller  Pacific  islands;  (3)  Territory  under 
the  special  wardship  of  the  National  Government 

1  See  W.  T.  Stead's  The  Americanization  of  the  World,  p.  77. 
*  Constitutional  Law,  p.  470. 


Imperialism  v.  Expansion         103 

directly;  (4)  Territory  controlled  by  a  special 
type  of  territorial  government;  and  (5)  Territory 
which  is  subject  to  special  Congressional  legisla- 
tion from  time  to  time,  having  no  settled  or  fixed 
outlined  policy  with  reference  to  its  future  position, 
as  in  the  case  of  the  Philippine  Islands. 

It  cannot  be  questioned  that  our  Constitution 
did  not  contemplate  such  a  condition.  If  we 
accept  the  judicial  attitude  on  the  subject,  we 
must  regard  much  of  this  territory  as  occupying  a 
transitory  position  with  reference  to  the  United 
States;  for  clearly  we  must,  in  order  to  be  con- 
sistent with  ooir  organic  law,  look  forward  to 
granting  to  these  dependencies  the  same  degree  of 
self-government  as  that  enjoyed  by  our  organized 
territory,  or  else  we  must  bestow  upon  them  com- 
plete independence.  In  no  other  way  can  we 
uphold  the  fundamental  doctrine  "that  govern- 
ments derive  their  just  powers  from  the  consent  of 
the  governed. " 

We  can  agree  with  Gladstone  when  he  said  that 
"The  paramount  question  of  the  American  future 
is  a  vision  of  territory,  population,  power,  passing 
beyond  all  experience.  The  momentous  exhibition 
to  mankind  for  the  first  time  in  history  of  free 
institutions  on  a  gigantic  scale. " 

De  Tocqueville  saw  in  this  same  vision  the 
undoing  of  the  American  Republic. 

"The  history  of  the  world  affords  no  instance  of 
a  great  nation  retaining  the  form  of  republican 


104  Interpretation  of  Political  Theory 

government  for  a  long  series  of  years,  and  this  has 
led  to  the  conclusion  that  such  a  state  of  things  is 
impracticable.  For  my  own  part,  I  cannot  but 
censure  the  imprudence  of  attempting  to  limit  the 
possible  and  to  judge  the  future  on  the  part  of  a 
being  who  is  hourly  deceived  by  the  most  palpable 
realities  of  life,  and  who  is  constantly  taken  by 
surprise  in  the  circumstances  with  which  he  is 
familiar.  But  it  may  be  advanced  with  confidence 
that  the  existence  of  a  great  republic  will  always 
be  exposed  to  far  greater  perils  than  that  of  a 
small  one. 

"All  the  passions  which  are  most  fatal  to  repub- 
lican institutions  spread  with  an  increase  of  ter- 
ritory, whilst  the  virtues  which  maintain  their 
dignity  do  not  augment  in  the  same  proportion." 

After  calling  attention  to  a  number  of  dangers  that 
threaten  an  expanding  empire,  De  Tocqueville 
says:  "It  may  therefore  be  asserted  as  a  general 
proposition  that  nothing  is  more  opposed  to  the 
well-being  and  the  freedom  of  man  than  vast  em- 
pires. "J  These  words  were  never  so  appropriate 
and  pointed  as  now.  Well  may  the  American 
people  heed  them  in  their  search  for  legal  authority 
when  their  most  vital  need  is  security  for  personal 
freedom. 

1  Democracy  in  America,  p.  159  et  seq. 


CHAPTER  V 

THE  THEORY  OF  INTERNAL  IMPROVEMENTS 

HTHE  problem  of  internal  improvements  was 
1  an  important  one  that,  by  the  logic  of  cir- 
cumstances, had  to  arise  in  the  course  of  the 
development  of  the  United  States.  The  rapid  de- 
velopment of  the  country  at  the  beginning  of 
the  nineteenth  century  naturally  attracted  atten- 
tion to  the  advisability  of  resorting  to  state  and 
Federal  support  for  such  purposes.  The  national 
debt  resulting  mainly  from  the  Revolutionary  War 
kept  this  question  in  the  background  for  a  few 
years  after  the  establishment  of  the  Federal  Gov- 
ernment, but  by  the  beginning  of  Jefferson's  ad- 
ministration it  was  seen  that  the  increasing 
revenues  would  enable  the  authorities  to  meet  all 
outstanding  obligations  as  they  came  due,  and  by 
December,  1806,  there  was  a  substantial  surplus  in 
the  national  treasury.  This  immediately  created 
the  problem  of  the  wise  expenditure  of  our  rapidly 
increasing  national  surplus. 

When  Congress  convened  in  December,  1806, 
Jefferson  sent  a  message1  to  Congress,  recommend- 

1  Annals  of  Congress,  December,  1806;  President's  message. 
105 


io6  Interpretation  of  Political  Theory 

ing  a  policy  that  was  both  natural  and  appropriate 
to  such  a  state  of  affairs.  He  recommended  that 
Congress  keep  up  the  Federal  impost,  and  that  the 
accruing  surpluses  thereafter  be  used  for  the  gen- 
eral welfare,  which  should  include  Federal  aid  to 
education,  the  construction  of  new  roads  and 
canals,  and  the  improvement  of  river  navigation  on 
interior  rivers  and  streams.  Jefferson  saw  in  his 
scheme  of  internal  improvement  great  possibilities 
for  the  future  good  of  the  country. 

"I  experience  [he said]  great  satisfaction  at  seeing 
my  country  proceed  to  facilitate  the  inter-com- 
munication of  its  several  parts,  by  opening  rivers, 
canals,  and  roads.  How  much  more  rational  is 
this  disposal  of  public  money  than  that  of  waging 
war. 

"  I  would  propose  a  constitutional  amendment 
for  authority  to  apply  the  surplus  taxes  to  objects 
of  internal  improvement. 

"  The  fondest  wish  of  my  heart  ever  was  that  the 
surplus  portion  of  these  taxes,  destined  for  the 
payment  of  the  Revolutionary  debt,  should,  when 
that  object  was  accomplished,  be  continued  by 
annual  or  biennial  reenactment  and  applied,  in 
times  of  peace,  to  the  improvement  of  our  country 
by  canals,  roads,  and  useful  institutions,  literary 
or  others."1 

In  the  furtherance  of  this  scheme  Gallatin, 
Jefferson's  Secretary  of  the  Treasury,  began  to 
draw  up  the  specifications  of  the  plan,2  and  on 

1  Curtis's  The  True  Thomas  Jefferson,  p.  297. 
a  For  the  complete  details  of  this  plan  see  Adams's  Gallatin,  p. 
351- 


Theory  of  Internal  Improvements  107 

April  12,  1808,  he  sent  to  the  Senate  his  elaborate 
proposal,  which  provided  for  canals,  turnpike 
roads  connecting  the  East  with  the  West,  and  the 
improvement  of  the  waterways  in  every  section 
of  the  country.  The  scheme  included  a  national 
university,  and  had  it  been  carried  out,  it  would 
have  consumed  all  the  surplus  revenues  for  a 
decade  or  more. 

The  President  believed  firmly  that  an  amend- 
ment to  the  Constitution  would  be  necessary  to 
carry  out  this  undertaking,  for  no  such  specific 
power  had  been  delegated  to  the  Congress  by  the 
people  in  the  Constitution,  and  the  general  grant 
"to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing 
[those  specified  in  section  8]  powers"  could  not 
relate  to  any  new  grants  because  such  powers  were 
not  expressed  in  set  terms.  This  was  the  conclu- 
sion reached  by  Jefferson  on  the  subject,  but 
Congress,  encouraged  by  the  flattering  financial 
condition  of  the  national  treasury,  and  without 
seriously  considering  the  constitutional  objections, 
proceeded  to  create  the  Coast  Survey,  and  made 
an  appropriation  for  the  Cumberland  Road  to 
extend  from  the  Potomac  to  the  Ohio  River, 
and  which  was  later  to  become  a  national  high- 
way penetrating  the  West  across  the  Alleghany 
Mountains. 

One  of  the  early  champions  of  this  legislation 
by  Congress  was  Henry  Clay,  of  Kentucky,  who 
had  just  entered  the  United  States  Senate  to  fill 


io8  Interpretation  of  Political  Theory 

out  an  unexpired  term  of  four  months.  He  was 
naturally  favorable  to  the  appropriation  of  funds 
for  the  Cumberland  Road,  and  at  this  time  (Feb- 
ruary 28,  1807),  he  succeeded  in  securing  the  pas- 
sage of  a  bill  in  the  Senate  appropriating  a  large 
amount  of  the  national  domain  for  the  construc- 
tion of  a  canal  around  the  falls  of  the  Ohio  River, 
but  the  bill  was  not  considered  by  the  House.1 
Clay  was  elected  a  member  of  the  House  in  1811, 
and  served  in  this  capacity,  with  only  one  or  two 
brief  periods,  until  he  entered  the  cabinet  of  John 
Quincy  Adams  as  Secretary  of  State  in  1825. 
During  this  period  he  supported  and  defended  all 
the  bills  that  were  introduced  in  Congress  relat- 
ing to  internal  improvements,  and  when  he  re- 
entered  the  Senate  he  renewed  his  championship 
of  these  measures.  He  answered  the  constitu- 
tional objections  of  Jefferson  and  others  by  declar- 
ing the  applicability  of  those  passages  that  gave 
to  Congress  the  power  "to  provide  for  the  com- 
mon defense,"  "to  establish  post  roads,"  and  "to 
pass  laws  necessary  and  proper  for  carrying  into 
execution"  the  foregoing  powers.  Clay  was  sup- 
ported in  this  doctrine  by  Calhoun  and  others, 
but  he  was  the  ablest  and  most  conspicuous  advo- 
cate of  internal  improvements,  and  he  continued 
to  support  the  doctrine  until  the  end  of  his  public 
career  in  1850 — two  years  before  his  death.  Con- 
gress throughout  this  period  had  been  generally 
favorable  to  this  kind  of  legislation,  but  most  of 

1  See  Lalor's  Cyclopaedia  of  Political  Science,  vol.  ii.,  p.  571. 


Theory  of  Internal  Improvements  109 

the  bills  relating  to  this  subject  met  with  execu- 
tive veto  on  constitutional  grounds. 

The  early  acts  of  Congress  relating  to  this  subject 
had  set  a  precedent  for  applying  the  doctrine  of  im- 
plied powers  to  internal  improvements  and  setting 
aside  all  constitutional  limitations.  It  is  interest- 
ing to  conjecture  what  the  result  would  have  been 
had  this  question  been  adjudicated  by  the  Su- 
preme Court  at  this  time.  But  the  nature  of  the 
legislation  made  it  impossible  to  become  a  matter 
at  issue  between  litigant  parties,  and  we  can, 
therefore,  only  surmise.  However,  we  are  re- 
minded that  Marshall  had  been  Chief  Justice  seven 
years  at  this  time,  and  he  had  already  indicated 
his  future  course  in  his  decision  in  the  case  of 
Marbury  v.  Madison.  But  perhaps  another  con- 
sideration may  even  better  enable  us  to  forecast 
what  might  have  resulted.  The  viewpoints  of 
Jefferson  and  Marshall  on  the  theory  of  construc- 
tion of  the  Constitution  were  diametrically  op- 
posed. Jefferson  wanted  to  restrict  the  powers 
of  the  National  Government  in  the  interest  of 
human  liberty,  and  Marshall  was  bent  upon  en- 
larging the  powers  of  the  Government  in  the 
interests  of  justice  and  nationality.  John  Adams 
had  appointed  Marshall  for  the  purpose  of  per- 
petuating and  developing  the  Federal  principle  in 
our  National  Government,  and  Jefferson  had  an- 
tagonized Marshall  and  criticized  the  Court  be- 
cause of  his  opposition  to  this  principle.  This  fact 
might  have  been  an  unconscious  consideration  had 


no  Interpretation  of  Political  Theory 

the  question  of  internal  improvements  been  passed 
up  to  the  Supreme  Court  for  an  opinion  on  its 
constitutional  merits. 

But  the  precedent  set  by  Congress  was  not 
destined  to  settle  the  question.  The  War  of  1812, 
however,  which  involved  large  financial  obliga- 
tions, made  internal  improvement  by  the  National 
Government  impossible.  This  war  had  another 
effect  that  had  a  bearing  on  the  question.  The 
American  success  in  the  war  caused  the  destruc- 
tion of  the  Federalist  party.  This  party  had 
violently  opposed  the  war,  and  the  twenty-six 
delegates  that  attended  the  Hartford  Convention 
came  from  its  ranks.  They  denounced  the  "ruin- 
ous war"  and  formulated  a  number  of  amend- 
ments to  the  Constitution  designed  to  restrict  the 
power  of  the  slave-holding  states,  to  protect  the 
commercial  interests  of  the  North,  to  make  more 
difficult  the  admission  of  Western  states,  and  "to 
check  the  succession  of  Virginia  Presidents. "  The 
Convention  was  in  session  one  month  and  on 
adjournment  the  delegates  sent  messengers  with 
their  demands  to  Washington,  but  the  latter 
arrived  just  as  the  news  of  the  victory  of  Jackson 
at  New  Orleans  and  the  Peace  of  Ghent  was 
received,  and  the  rejoicing  over  this  news  made 
the  defeat  of  the  Federalist  party  complete  and 
the  Hartford  envoys  returned  to  New  England 
totally  discredited  before  the  country.  The  Re- 
publicans were  now  in  complete  ascendency,  and 
they  did  not  believe  that  Congress  had  power  to 


Theory  of  Internal  Improvements  in 

authorize  appropriations  for  internal  improve- 
ments had  the  war  not  exhausted  the  funds  of  the 
national  treasury. 

The  rapid  development  of  the  West  and  the 
limited  capital  for  the  development  of  this  new 
section  of  the  country  had  brought  the  question 
of  internal  improvements  to  the  front  again  in 
1816,  when  President  Madison  in  his  last  annual 
message  to  Congress  urged  that  body  to  provide 
aid  for  roads  and  canals  "such  as  would  have  the 
effect  of  drawing  more  closely  together  every  sec- 
tion of  the  country."  A  few  days  later  Calhoun 
introduced  a  bill  which  provided  for  the  appropria- 
tion of  the  $i  ,500,000  which  had  been  promised  to 
the  Government  as  a  bonus  for  the  establishment 
of  the  second  national  bank  and  the  dividends 
derived  from  Government  stock  in  the  bank,  for 
internal  improvements.  The  measure  was  bitterly 
opposed  in  both  branches  of  Congress,  but  it 
finally  passed  with  a  close  margin.  President 
Madison,  however,  who  believed  in  spending  the 
nation's  money  for  internal  improvements,  as  his 
message  of  the  preceding  December  had  shown, 
nevertheless  vetoed  the  measure  because  he  be- 
lieved with  Jefferson  that  the  Constitution  had 
not  given  Congress  this  power. 

Monroe,  Madison's  successor,  assumed  the  re- 
sponsibilities of  the  Presidency  on  the  day  follow- 
ing the  veto  of  Calhoun 's  Bonus  Bill  for  internal 
improvements,  and  of  course  the  subject  was 
uppermost  in  the  public  mind  at  this  time.  Mon- 


ii2  Interpretation  of  Political  Theory 

roe  felt  called  upon  to  consider  the  question  in 
his  first  message  to  Congress,  and  in  doing  so  he 
advised  Congress  to  recommend  to  the  states  a 
constitutional  amendment  bestowing  the  power 
upon  Congress  to  appropriate  funds  and  to  under- 
take internal  improvements.  "Disregarding  early 
impressions,"  he  declared,  "I  have  bestowed  on 
the  subject  all  the  deliberation  which  its  great 
importance  and  a  just  sense  of  my  duty  required, 
and  the  result  is  a  settled  conviction  in  my  mind 
that  Congress  does  not  possess  the  right." 

The  advice  of  Monroe  was  accepted  by  the 
Senate,  and  an  attempt  was  made  to  submit  an 
amendment  to  the  state  legislatures  with  this 
object  in  view,  but  opposition  developed,  and  in 
the  House  there  was  a  noticeable  unwillingness  to 
await  the  delay  that  such  a  procedure  would 
involve.  Three  resolutions  were  introduced  in 
the  House  each  asserting  that  Congress  already 
had  such  power,  but  each  in  turn  was  defeated. 
But  the  discussion  resulting  from  these  resolutions 
brought  out  an  important  distinction  that  looked 
to  the  practical  solution  of  the  difficulty.  It  was 
explained  that  the  power  to  originate  works  of 
internal  improvement  by  national  authority  and 
the  right  simply  to  appropriate  funds  to  aid  con- 
struction already  begun  by  the  states  were  very 
different  matters,  and  it  was  the  belief  of  many 
that  Congress  had  power  under  the  latter  condi- 
tion. The  question  was  thus  disposed  of  with  the 
requirement  that  the  Secretaries  of  war  and  the 


Theory  of  Internal  Improvements  113 

Treasury  make  an  investigation  to  determine 
what  improvements  were  under  way  in  the  various 
states  and  report  at  the  next  session  of  Congress. 

The  request  was  complied  with,  and  at  the 
opening  of  the  Fifteenth  Congress  a  full  report 
was  laid  before  that  body.  But  an  empty  treasury 
made  it  impossible  to  carry  out  the  recommenda- 
tions made,  with  the  exception  of  providing  a  half 
million  dollars  for  the  extension  of  the  Cumberland 
Road  to  the  Ohio  River.  This  was  the  beginning 
of  a  political  fight  which  was  destined  to  continue 
with  slight  interruptions  for  the  next  twenty 
years,  with  such  national  leaders  as  Clay  and 
Adams  on  the  one  side,  and  Jackson,  whose 
political  ascendency  was  just  beginning,  on  the 
other. 

But  the  short  lull  resulting  from  the  depletion 
of  the  treasury  was  to  be  followed  shortly  by 
renewed  persistency  for  national  appropriations 
for  internal  improvements.  Every  section  and 
state  was  anxious  to  promote  its  material  ad- 
vancement and  every  community  was  interested 
in  some  kind  of  internal  improvement  for  which 
national  aid  was  sought,  and  nothing  was  more 
popular  than  to  advocate  liberal  expenditure  from 
the  treasury  for  these  various  objects  of  local 
interest.  It  was  easy  to  see  that  national  interest 
and  welfare  were  in  danger  of  being  lost  sight  of  in 
the  great  concern  for  local  interest  and  provincial 
advantage,  and  Monroe  was  quick  to  perceive 
this  danger. 


1 14  Interpretation  of  Political  Theory 

Monroe  sought  an  opportunity  to  recall  to  the 
representatives  of  the  people  the  constitutional 
principle  involved,  and  the  opportunity  came 
when  a  bill  was  passed  by  Congress  in  1822, 
appropriating  the  small  sum  of  $9000  for  the 
repair  of  the  Cumberland  Road,  and  authorizing 
in  addition  the  erection  of  tollgates  and  the 
collection  of  tolls  for  keeping  the  road  in  repair. 
Monroe  returned  the  bill  with  his  veto,  the 
attempt  to  pass  the  measure  over  his  opposition 
failed,  and  the  bill  was  lost.  The  President  ac- 
companied his  veto  message  with  a  state  paper 
in  which  he  gave  his  views  on  the  subject.  The 
statement  must  for  all  time  take  rank  as  one 
of  the  best  papers  ever  written  by  a  President. 
This  document  had  been  prepared  and  submitted 
to  his  cabinet  in  1819,  but  at  the  request  of 
Adams,  Calhoun,  and  Crawford,  who  were  not  in 
harmony  with  his  views  on  the  subject,  it  was  not 
sent  to  Congress.1  He  reviewed  at  great  length 
the  clauses  of  the  Federal  Constitution  under 
which  loose  constructionists  claimed  the  right  of 
Congress  to  appropriate  money  for  internal  im- 
provements, and  showed  that  in  each  case  the 
interpretations  were  untenable.  He  did  accede 
to  the  opinion  of  Congress,  expressed  in  1818, 
that  Congress  could  appropriate  money  in  aid  of 
internal  improvements  already  begun  by  the  sev- 
eral states.  The  effect  of  this  paper  was  to  defeat 
temporarily  the  advocates  of  this  popular  policy. 

1  Schouler's  History  of  the  United  States,  vol.  iv.,  p.  254. 


Theory  of  Internal  Improvements  115 

The  succeeding  administration  tried  to  sweep  over 
the  precedent  established  by  Monroe,  but  this 
policy  was  not  approved,  for  public  opinion  was 
gradually  yielding  to  the  logic  of  the  President's 
argument. 

The  question  of  internal  improvements  was  one 
of  the  few  great  political  issues  before  the  people 
that  have  never  been  reviewed  by  the  Supreme 
Court,  but  Monroe's  veto  gave  the  members  of 
the  Court  a  chance  to  express  an  opinion  on  the 
subject.  The  incident  is  one  of  the  most  interest- 
ing and  unusual  in  our  political  history.  Monroe 
sent  a  copy  of  his  veto  message  to  each  member 
of  the  Supreme  Court,  and  Justice  Johnson1  re- 
plied in  a  very  important  communication.  He 
intimated  that  the  bank  decision  (M'Cullough  v. 
State  of  Maryland)  in  the  opinion  of  his  associates 
on  the  Bench  committed  the  tribunal  to  the 
doctrine  of  internal  improvement  by  national  ap- 
propriations in  so  far  as  they  applied  to  post 
roads  and  military  roads;  but  on  the  other  points 
the  argument  of  Monroe  carried  conviction.  No 
opinion  was  expressed  by  Story  on  the  matter. 

1  William  Johnson,  of  South  Carolina,  was  appointed  to  the 
Supreme  Bench  by  Jefferson,  and  previous  to  the  time  of  his 
appointment  had  been  an  ardent  admirer  of  Jefferson,  but  on 
account  of  a  criticism  resulting  from  some  decision  while  acting 
as  circuit  judge,  he  became  less  friendly  to  Jefferson.  The 
tendency  of  Johnson  on  constitutional  questions  had  been  that 
of  a  mild  Federalist.  He  rarely  approved  of  the  views  on  nation- 
ality held  by  Marshall,  and  he  resented  the  extreme  views 
maintained  by  Story. 


n6  Interpretation  of  Political  Theory 

The  Chief  Justice  in  his  reply  said  that  "it  is  a 
subject  on  which  many  divide  in  opinion;  but  all 
will  admit  that  your  views  are  profound  and  that 
you  have  thought  much  on  the  subject."  But 
further  than  this  he  did  not  go,  believing  no  doubt 
that  it  would  be  inappropriate  for  the  Court  to 
express  an  opinion  on  a  mere  political  question. 

John  Quincy  Adams  became  President  in  1825, 
and  internal  improvement  under  national  direc- 
tion was  the  central  object  of  the  domestic  policy 
advocated  by  him,  and  his  first  message  to  Con- 
gress exceeded  all  previous  declarations  on  the 
subject.  He  proposed  governmental  aid,  not  only 
to  roads  and  canals,  "but  to  seminaries  of  science 
and  learning,  observatories,  and  expeditions."  He 
went  so  far  as  to  cause  even  Clay  to  doubt  the 
wisdom  of  his  message  on  this  subject,  and  both 
Wirt  and  Barbour,  members  of  his  cabinet,  ob- 
jected to  his  taking  such  strong  ground  on  internal 
improvements.  Later  Adams  himself  admitted 
that  he  went  too  far  in  his  message.1  But  con- 
flicting interests  of  the  various  sections  of  the 
country  had  already  directed  the  attention  of 
Congress  to  other  matters,  and  very  little  was 
done  along  the  line  of  internal  improvement 
during  the  administration  of  Adams. 

During  the  administration  of  Adams  the  two 
wings  of  the  Republican  party  drew  so  far  apart 
as  to  make  necessary  new  names  to  designate  them. 
The  followers  of  Adams  and  Clay,  whose  most 

1  Shouler's  History  of  the  United  States,  vol.  iv.,  p.  358. 


Theory  of  Internal  Improvements  117 

distinct  and  prominent  doctrine  was  internal  im- 
provement at  national  expense,  were  called  Na- 
tional-Republicans; and  the  opponents  of  this 
policy,  under  the  leadership  of  Jackson,  Calhoun, 
and  Crawford,  were  called  by  the  original  party 
name  of  Democratic-Republicans.  The  former, 
without  changing  essentially  their  party  beliefs, 
developed  into  the  Whig  party,  and  the  latter 
likewise  became  the  Democratic  party.  We  shall 
now  see  how  the  doctrine  of  internal  improve- 
ment continued  as  a  party  issue  with  these  new 
alignments. 

In  1828  Adams,  the  candidate  of  the  National- 
Republican  party,  was  defeated  for  reelection 
by  Andrew  Jackson,  his  Democratic  opponent. 
The  question  of  internal  improvement  was  thrust 
upon  him  by  Congress.  Several  bills  were  passed 
which  he  tried  to  persuade  his  friends  in  Congress 
to  defeat,  but  to  no  avail.  The  first  of  these  was 
the  Maysville  and  Lexington  Turnpike  bill,  which 
he  returned  to  the  House  with  his  veto,  and  it  was 
lost.  Of  the  four  other  bills  passed  just  before 
the  close  of  the  session,  he  approved  one,  vetoed 
one,  and  defeated  the  other  two  by  retaining 
them  until  after  adjournment.  This  was  the 
beginning  of  Jackson's  famous  exercise  of  the  veto 
power. 

Jackson  gave  as  his  reasons  for  opposing  legisla- 
tion dealing  with  internal  improvements  that  such 
improvements  should  wait  until  the  national  debt 
was  paid,  and  the  Constitution  amended  so  that 


n8  Interpretation  of  Political  Theory 

power  could  be  vested  in  Congress. x  The  friends 
of  internal  improvement  protested  bitterly  against 
Jackson's  veto  of  these  measures,  but  the  policy 
on  the  whole  proved  to  be  popular,  especially  in 
the  South.  The  teaching  of  Monroe  on  the  sub- 
ject had  helped  at  this  time  to  justify  the  position 
of  Jackson. 

Clay  was  the  National-Republican  opponent  of 
Jackson  in  1832,  and  his  was  the  first  platform 
ever  adopted  by  any  party  in  this  country.  The 
third  resolution  reads  as  follows:  "A  uniform 
system  of  internal  improvements,  sustained  and 
supported  by  the  general  government,  is  calcu- 
lated to  secure,  in  the  highest  degree,  the  harmony, 
the  strength,  and  the  permanency  of  the  republic. " 
The  doctrine  of  the  Democrats  was  not  expressed 
on  this  subject  in  a  platform  until  1840,  when  this 
language  was  used:  "The  Constitution  does  not 
confer  upon  the  general  government  the  power  to 
commence  and  carry  on  a  general  system  of 
internal  improvements."  This  doctrine  was  re- 
affirmed in  each  succeeding  Democratic  platform 
until  1860. 

The  question  of  internal  improvements  began 

1  Jackson,  five  years  earlier,  while  a  member  of  the  Senate,  had 
repeatedly  voted  in  favor  of  bills  for  internal  improvement,  but 
his  convictions  had  undergone  a  change,  which  were  partly  due 
to  political  considerations  and  partly  due  to  his  fear  of  the 
dominating  influence  of  the  moneyed  interests.  His  belief  in 
strict  construction  had  also  deepened,  but  he  was  never  greatly 
influenced  by  technical  constitutional  constructions.  (See 
Dewey's  Financial  History  of  trie  United  States,  p.  215.) 


Theory  of  Internal  Improvements  1 19 

to  give  way  gradually  after  1832  in  the  presence 
of  other  questions  of  growing  importance — the 
political  issues  connected  with  the  rechartering  of 
the  United  States  Bank,  the  tariff,  and  the  annexa- 
tion of  Texas;  and  all  of  these  were  destined  to 
give  way  shortly  to  the  absorbing  and  paramount 
question  of  slavery.1  An  echo  of  the  internal 
improvement  controversy  was  heard  during  the 
financial  troubles  of  Van  Buren's  administration 
when  the  Whigs  charged  that  the  financial  distress 
had  been  largely  brought  on  by  the  refusal  of  the 
Government  to  lend  its  aid  to  internal  improve- 
ment. 

In  the  campaign  of  1840  the  last  echo  of  the 
doctrine  of  internal  improvement  was  heard  in 
the  promises  of  the  Whigs  to  secure  the  passage 
of  internal  improvement  bills  should  that  party 
win  at  the  polls.  The  Whigs  did  not  adopt  a 
platform  in  that  year  and  no  formal  declaration 
was  made,  and  their  mere  party  promises  did  not 
mature  when  Harrison  and  Tyler,  the  Whig  candi- 
dates, won  the  election.  But  the  death  of  Harrison 
early  in  his  administration,  and  the  weak  party 
faith  of  Tyler  in  the  Whig  party  beliefs  may  have 
had  something  to  do  with  the  failure  of  these 

1  Gradually  it  began  to  be  realized  by  the  several  states  that 
Federal  aid  for  internal  improvements  was  to  be  greatly  re- 
stricted, and  the  state  legislatures  began  to  assume  this  respon- 
sibility. Previous  to  1820  the  states  had  incurred  practically  no 
liability  for  this  purpose,  but  in  the  decade — 1830-1840 — the 
total  exceeded  $200,000,000.  (See  Bogard's  Economic  History  of 
the  United  States,  p.  214.) 


120  Interpretation  of  Political  Theory 

campaign  promises  to  be  fulfilled,  but  after  all 
the  day  had  passed  for  much  legislation  in  the 
interest  of  internal  improvements. 

Concluding  Observations 

The  political  issue  of  internal  improvements 
presents  two  or  three  very  interesting  phases 
because  of  which  it  deserves  a  brief  survey.  In 
the  first  place,  it  is  one  of  the  few  great  national 
issues  that  never  really  came  up  to  the  Supreme 
Court  for  constitutional  affirmation  or  denial. 
The  nearest  approach  to  it  came  in  the  administra- 
tion of  Monroe  when  he  attempted  to  get  an 
opinion  of  the  Court  on  his  own  analysis  of  the 
doctrine,  and  the  remarks  of  Justice  Johnson 
represent  the  only  committal  words  that  we  have 
from  the  Supreme  Court  touching  the  issue. 

In  the  second  place,  no  other  issue  of  national 
importance  has  ever  been  so  influenced  by  the 
rise  and  fall  of  our  national  resources.  In  the 
language  of  Schouler1: 

"  No  theme  for  public  agitation  in  this  era  of  our 
history  seems  to  have  swelled  and  died  away  with 
the  ebb  and  flow  of  the  National  Treasury  like 
that  of  internal  improvements.  .  .  .  Like  an 
organ  whose  keyboard  emits  no  sound  until  air 
is  forced  into  the  pipes,  nothing  was  heard  of  this 
policy  while  the  revenues  were  exhausted;  but 
now,  when  the  national  debt  decreased  and  confi- 

1  History  of  the  United  States,  vol.  iv.,  p.  249. 


Theory  of  Internal  Improvements  121 

dence  revived,  the  diapason  swelled  into  a  loud 
acclaim  for  great  national  works,  to  be  prosecuted 
at  the  cost  of  the  whole  Union." 

This  was  characteristic  of  the  history  of  the 
whole  agitation.  In  the  third  place,  we  can  hardly 
avoid  a  speculation  that  obtrudes  itself  in  the 
study  of  the  history  of  this  issue.  While  the  whole 
question  of  internal  improvement  was  uppermost 
in  the  public  mind,  there  began  the  construction 
of  the  first  railroads  under  private  initiative  in  this 
country.  The  Mohawk  and  Hudson  Company 
began  in  1825,  and  two  years  later  the  Boston  and 
Albany  and  the  Pennsylvania.  The  construction 
of  the  Baltimore  and  Ohio  was  undertaken  in  1828. 
Canals  had  been  the  chief  object  of  construction 
at  national  expense,  with  the  exception  of  roads, 
and  these  railroads  naturally  began  to  supersede 
the  canals  as  an  agency  of  transportation.  It  is 
remarkable  that  the  public  did  not  immediately 
see  the  possibilities  of  railroads  and  start  a  move- 
ment designed  to  construct  them  at  national 
expense.  Professor  Muzzey1  makes  an  interesting 
comment  on  this  possibility. 

"Who  can  calculate  the  effect  on  the  economic 
and  political  history  of  our  country  if  the  con- 
struction and  management  of  railways  had  been 
adopted  as  part  of  the  national  government's 
business  in  John  Quincy  Adams'  administration, 
and  if  Congress  now  had  the  same  control  over 

1  American  History,  p.  266. 


122  Interpretation  of  Political  Theory 

the  steel  lines  of  land  transportation  that  it  has 
over  the  rivers  and  harbors  of  the  United  States." 

The  status  of  the  doctrine  at  the  present  time 
may  be  summarized  as  follows.  The  right  of 
Congress  to  appropriate  money  for  lighthouses, 
buoys,  beacons,  and  public  piers  has  since  1789 
been  recognized  as  being  within  the  expressed 
power  of  Congress.  The  first  actual  appropriation 
for  other  internal  improvement  was  for  the  con- 
struction of  the  Cumberland  Road  in  1806.  In 
May,  1822,  President  Monroe  vetoed  the  Cumber- 
land Road  bill,  and  gave  to  the  world  at  the  same 
time  his  famous  state  paper  on  the  same  subject, 
in  which  he  denied  that  Congress  had  constitutional 
power  to  pass  such  measures.  Congress  passed 
the  first  act  for  harbor  improvement  in  1823. 
Jackson  in  1830  vetoed  the  Maysville  Turnpike 
Road  bill,  which  had  the  effect  of  removing  all 
question  as  to  the  power  of  Congress  to  authorize 
such  expenditure.  Since  that  time  all  such  im- 
provements have  been  regarded  as  the  legitimate 
objects  of  expenditure  on  the  part  of  the  individual 
states. T 

1  See  Dictionary  of  American  History,  vol.  i.,  p.  351. 


CHAPTER  VI 

THEORY  OF  THE  UNITED   STATES   BANK 

r~PHE  history  of  banking  in  this  country  can  be 
1  traced  back  to  1714,  when  a  land  bank, 
modeled,  no  doubt,  from  ideas  obtained  from 
John  Law  of  France,  was  established  in  Boston. 
Loans  were  to  be  made  on  ratable  estates  equal 
to  two-thirds  their  value.  The  scheme  proved 
very  popular  with  a  large  class  of  people.  But 
the  bank  was  attacked  by  Paul  Dudley,  Attorney- 
General,  on  certain  legal  grounds,  and  when  the 
matter  of  granting  a  charter  to  the  institution 
came  before  the  assembly  of  the  colony,  it  was 
refused.  The  land  bank  of  1741  was  the  next  to  be 
established,  but  its  methods  of  doing  business 
almost  produced  a  revolution.1  But  in  spite  of 
popular  opposition,  many  new  banks  began  to 
spring  up,  and  our  commercial  affairs  were  threat- 
ened with  an  experience  not  dissimilar  to  that  of 
the  English  South  Sea  speculative  mania,  which 
had  the  effect  of  causing  the  country  in  later  times 
to  distrust  banks  and  banking  schemes. 

National  banking  in  the  United  States  had  its 
inception  in  the  creation  of  the  Bank  of  North 
1  Dewey's  Financial  History  of  the  United  States,  p.  25. 
123 


124  Interpretation  of  Political  Theory 

America  at  Philadelphia.  This  bank  grew  out 
of  the  plan  of  Robert  Morris,  Superintendent  of 
Finance,  who  established  the  bank  in  the  hope  of 
redeeming  the  depreciated  bills  of  credit  issued  by 
Congress  during  the  Revolutionary  War.  The 
charter  was  granted  by  Congress  in  1782.  As 
serious  doubts  existed  as  to  the  authority  of 
Congress  to  charter  a  bank  under  the  Articles  of 
Confederation,  the  bank  took  out  a  charter  under 
the  laws  of  Pennsylvania.  This  bank  was  re- 
garded as  a  state  bank  by  Hamilton,  and  it  was 
generally  regarded  as  such,  until  our  National 
Banking  law  went  into  effect  in  1863,  when  it 
took  out  a  charter  under  the  laws  of  the  United 
States.  It  is  still  in  existence,  and  has  the  dis- 
tinction of  being  the  oldest  banking  institution 
in  the  United  States. 

In  Hamilton's  great  report  to  Congress  on 
December  13,  1790,  he  recommended  the  estab- 
lishment of  a  United  States  Bank.  In  this  report 
he  set  forth  with  much  acumen  the  nature  and 
function  of  the  bank.  A  bill  was  immediately 
introduced  in  Congress  in  conformity  to  the  re- 
commendation of  the  Secretary  of  the  Treasury. 
The  bill  was  strenuously  opposed,  Madison  leading 
the  opposition,  on  the  ground  "That  the  power 
of  establishing  an  incorporated  bank  was  not 
among  the  powers  vested  in  Congress  by  the 
Constitution."  However,  the  majority  accepted 
the  doctrine  of  loose  construction  and  on  February 
25,  1791,  the  bill  became  a  law. 


Theory  of  the  United  States  Bank   125 

A  provision  in  this  law  limited  the  existence  of 
the  bank  to  twenty  years.  At  the  expiration  of 
that  term,  although  the  bank  had  prospered,  when 
the  stockholders  applied  for  a  renewal  of  the 
charter,  a  bitter  controversy  arose.  Secretary 
Gallatin  recommended  a  renewal  of  the  charter 
with  an  increase  of  the  bank's  capital.  The  fact 
that  18,000  shares  of  the  stock  of  the  bank  were 
held  by  foreigners,  and  the  intense  antagonism  of 
our  people  toward  England  at  this  time,  had  much 
to  do  with  the  final  result.  Clay,  who  had  come 
into  prominence  at  this  time,  opposed  the  bank  on 
the  ground  that  "the  Constitution  did  not  origi- 
nally authorize  Congress  to  grant  the  charter"; 
therefore,  the  renewal  would  be  unconstitutional. 
Clay,  in  later  life,  became  the  bank's  greatest 
champion.  It  is  claimed  by  many  that  Clay's  later 
views  never  successfully  answered  his  own  argu- 
ment in  this  earlier  period.1  Largely  through 
Clay's  influence  the  charter  was  defeated  in  the 
House  by  the  decisive  vote  of  165  to  64.  The  vote 
in  the  Senate  was  a  tie,  but  Vice-President  George 
Clinton  cast  his  vote  against  it,  and  the  charter 
failed  of  renewal. 

An  unforeseen  condition  arose  soon  after  the 
closing  of  the  first  bank  that  made  possible  the 
creation  of  the  second  national  bank.  There 
sprang  up  throughout  the  country  a  great  number 
of  irresponsible  state  banks.  State  laws  on  the 
subject  were  not  uniform,  and  in  many  cases  they 

1  See  Calwell's  Henry  Clay,  p.  26. 


126  Interpretation  of  Political  Theory 

were  so  loosely  drawn  as  to  allow  wild-cat  bank- 
ing. The  country  was  flooded  with  cheap  paper 
money.  National  finances  were  in  a  chaotic  con- 
dition. The  friends  of  the  first  United  States 
Bank  considered  this  a  result  of  the  failure  to  re- 
charter  the  Bank.  Clay  was  away  during  a  part 
of  1814-1815,  as  a  Peace  Commissioner.  But  upon 
his  return  he  confessed  that  his  views  had  under- 
gone a  change.  His  biographers  assert  that  this 
was  the  only  change  of  political  view  that  he  ever 
made  on  any  great  measure.  Surely  he  was 
gradually  shifting  his  view  at  this  time  from  strict 
to  loose  construction.  Madison  had  also  shifted 
his  view  on  this  subject.  He  likewise  had  been 
opposed  to  the  first  bank  on  constitutional 
grounds;  but  the  chaotic  financial  conditions 
caused  him,  when  he  became  President,  to  send  a 
message  to  Congress  in  1815  recommending  a  na- 
tional bank  to  meet  the  financial  problem  of  the 
Federal  Government.  In  conformity  with  this 
recommendation,  a  bill  was  introduced,  and 
on  April  1 6,  1816,  the  bill  was  passed,  and 
on  January  7,  1817,  the  bank  opened  for 
business. 

While  many  had  been  induced  to  support  the 
national  bank  on  grounds  of  expediency,  still  there 
was  a  general  belief  that  the  act  was  not  supported 
by  any  provision  of  the  Constitution  and  that 
Congress  had  exceeded  its  power.  Two  years  after 
the  passage  of  the  act,  the  Supreme  Court  handed 
down  its  great  decision  in  the  case  of  M'Cullough 


Theory  of  the  United  States  Bank   127 

v.  State  of  Maryland  et  al.,1  which  supported  the 
theory  of  the  constitutionality  of  the  act  in  the 
strongest  terms.  This  case  grew  out  of  the  passage 
of  a  statute  in  1818  by  the  Legislature  of  Maryland, 
assessing  a  tax  on  "all  banks  or  branches  thereof 
in  the  State  of  Maryland  not  chartered  by  the 
Legislature."  M'Cullough,  the  cashier,  had  vio- 
lated this  law  by  refusing  to  use  the  stamped  paper 
in  making  notes  as  required.  Chief  Justice  Mar- 
shall delivered  the  opinion  of  the  Court.  After 
raising  the  question  as  to  the  right  of  Congress  to 
incorporate  a  bank,  the  Court  proceeded  to  affirm 
the  power,  as  follows : 

"  It  has  been  truly  said,  that  this  can  scarcely 
be  considered  an  open  question,  entirely  unpre- 
judiced by  the  former  proceeding  of  the  Nation 
respecting  it.  The  principle  now  contested  was 
introduced  at  a  very  early  period  of  our  history, 
has  been  recognized  by  many  successive  legisla- 
tures, and  has  been  acted  upon  by  the  judicial 
department,  in  cases  of  peculiar  delicacy,  as  a  law 
of  undoubted  obligation. 

"  The  power  now  contested  was  exercised  by  the 
first  Congress  elected  under  the  present  Constitu- 
tion. The  bill  for  creating  the  Bank  of  the  United 
States  did  not  steal  upon  an  unsuspecting  legisla- 
ture and  pass  unobserved.  Its  principle  was  com- 
pletely understood,  and  was  opposed  with  equal 
zeal  and  ability.  After  being  resisted,  first  in  the 
fair  and  open  field  of  debate,  and  afterward  in  the 
executive  cabinet,  with  as  much  persevering  talent 
as  any  measure  has  ever  experienced,  and  being 

1  4  Wheaton,  316. 


128  Interpretation  of  Political  Theory 

supported  by  arguments  which  convinced  minds 
as  pure  and  as  intelligent  as  this  country  can 
boast,  it  became  a  law.  The  original  act  was  per- 
mitted to  expire;  but  a  short  experience  of  the 
embarrassment  to  which  the  refusal  to  revive  it 
exposed  the  Government,  convinced  those  who 
were  most  prejudiced  against  the  measure  of  its 
necessity,  and  induced  the  passage  of  the  present 
law.  It  would  require  no  ordinary  share  of  in- 
trepidity to  assert,  that  a  measure  adopted  under 
these  conditions,  was  a  bold  and  plain  usurpation, 
to  which  the  Constitution  gave  no  countenance." 

The  Court  then  answered  the  argument  of 
counsel  for  the  State  of  Maryland  who  contended 
that  ratification  of  the  Constitution  was  the  indi- 
vidual act  of  the  sovereign  states.  The  Court 
denied  this  by  asserting  that  ratification  was  the 
sovereign  act  of  the  people  of  the  several  states, 
and  concluded  this  part  of  the  argument  as  follows : 

"The  Government  of  the  Union,  then  (whatever 
may  be  the  influence  of  this  fact  on  the  case),  is 
emphatically  and  truly  a  Government  of  the 
people.  In  form  and  substance  it  emanates  from 
them,  its  powers  are  granted  by  them,  and  are 
to  be  exercised  directly  on  them,  and  for  their 
benefit." 

The  Court  then  proceeded  to  apply  the  doc- 
trine of  loose  construction  to  the  matter  under 
consideration. 

"  Among  the  enumerated  powers,  we  do  not  find 
that  of  establishing  a  bank  or  creating  a  corpora- 
tion. But  there  is  no  phrase  in  the  instrument 


Theory  of  the  United  States  Bank   129 

which,  like  the  Articles  of  Confederation,  excludes 
incidental  or  implied  powers;  and  which  requires 
that  everything  granted  shall  be  expressly  and 
minutely  described.  A  constitution  to  contain  an 
accurate  detail  of  all  the  subdivisions  of  which  its 
great  powers  will  admit,  and  of  all  the  means  by 
which  they  may  be  carried  out,  would  partake  of 
the  prolixity  of  a  legal  code,  and  could  scarcely 
be  embraced  by  the  human  mind.  Although, 
among  the  enumerated  powers  of  Government, 
we  do  not  find  the  word  'bank*  or  'incorpora- 
tion,' we  find  the  great  powers  to  lay  and  collect 
taxes;  to  borrow  money;  to  regulate  commerce; 
to  declare  and  conduct  a  war;  and  to  raise  and 
support  armies  and  navies.  It  may  with  great 
reason  be  contended,  that  a  government,  in- 
trusted with  such  powers,  on  the  due  execution 
of  which  the  happiness  and  prosperity  of  the 
nation  depends,  must  also  be  intrusted  with  ample 
means  for  their  execution.  The  power  being  given, 
it  is  the  interest  of  the  nation  to  facilitate  its 
execution.  It  can  never  be  their  interest,  and 
cannot  be  presumed  to  have  been  their  intention 
to  clog  and  embarrass  its  execution  by  withholding 
the  most  appropriate  means.  But  the  Constitu- 
tion of  the  United  States  has  not  left  the  right 
of  Congress  to  employ  the  necessary  means,  for 
the  execution  of  the  powers  conferred  on  the 
Government,  to  general  reasoning.  To  its  enumer- 
ated powers  is  added  that  of  making  'all  laws 
which  shall  be  necessary  and  proper,  for  carrying 
into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  this  Constitution  in  the  Govern- 
ment of  the  United  States,  or  in  any  department 
thereof."1 

The  Court  concludes  by  saying  that 

9 


130  Interpretation  of  Political  Theory 

"After  the  most  deliberate  consideration,  it  is 
the  unanimous  and  decided  opinion  of  this  Court, 
that  the  act  to  incorporate  the  Bank  of  the  United 
States  is  a  law  made  in  pursuance  of  the  Con- 
stitution, and  is  a  part  of  the  supreme  law  of  the 
land." 

In  1824,  the  Supreme  Court  sustained  their 
decision  in  M'Cullough  v.  State  of  Maryland  in 
the  case  of  Osborn  v.  the  United  States  Bank.1 
This  decision  is  important,  not  only  in  sustaining 
the  constitutionality  of  the  bank,  but  also  in  its 
very  careful  analysis  of  the  nature  of  the  bank  as 
a  Federal  corporation.  The  Court  was  called  upon 
to  pass  on  seven  questions,  the  last  of  which  was 
that  of  the  constitutionality  of  a  state  law  which 
imposed  a  tax  on  one  of  the  branches  of  the  Bank 
of  the  United  States.  After  referring  to  the  case 
M'Cullough  v.  State  of  Maryland,  the  Court  said : 

"A  revision  of  that  opinion  has  been  requested; 
and  many  conditions  combine  to  induce  a  review 
of  it.  The  foundation  of  the  argument  in  favor  of 
the  right  of  a  State  to  tax  the  bank,  is  laid  in  the 
supposed  character  of  the  institution.  The  argu- 
ment supposes  the  corporation  to  have  been 
originated  for  the  management  of  an  individual 
concern,  to  be  founded  upon  contract  between 
individuals,  having  private  trade  and  private 
profit  for  its  great  end  and  principal  object.  If 
these  premises  were  true,  the  conclusion  drawn 
would  be  inevitable.  This  mere  private  cor- 
poration, engaging  in  its  own  business,  with 
its  own  views,  would  certainly  be  subject  to 

X9  Wheaton,  738. 


Theory  of  the  United  States  Bank   131 

the  taxing  power  of  the  State,  as  any  individual 
would  be;  and  the  casual  circumstance  of  its 
being  employed  by  the  Government  in  the  trans- 
action of  its  fiscal  affairs,  would  no  more  exempt 
its  private  business  from  the  operation  of  that 
power,  than  it  would  exempt  the  private  business 
of  any  individual  employed  in  the  same  manner. 
But  the  premises  are  not  true.  The  bank  is  not 
considered  as  a  private  corporation,  whose  prin- 
cipal object  is  individual  trade  and  individual 
profit;  but  a  public  corporation,  created  for  public 
and  national  purposes.  It  was  not  created  for 
its  own  sake,  or  for  private  purposes.  It  has  never 
been  supposed  that  Congress  could  create  such  a 
corporation.  The  whole  opinion  of  the  Court  in 
M'Cullough  v.  State  of  Maryland  is  founded  on, 
and  sustained  by,  the  idea  that  the  bank  is  an 
instrument  which  is  'necessary  and  proper  for 
carrying  into  effect  the  powers  vested  in  the  Gov- 
ernment of  the  United  States.'  It  is  not  an 
instrument  which  the  Government  found  ready 
made,  and  has  supposed  to  be  adapted  to  its 
purposes;  but  one  which  was  created  in  the  form 
in  which  it  now  appears,  for  national  purposes 
only.  It  is,  undoubtedly,  capable  of  transacting 
private  as  well  as  public  business.  While  it  is  the 
great  instrument  by  which  the  fiscal  operations 
of  the  Government  are  effected,  it  is  also  trading 
with  individuals  for  its  own  advantage.  The 
appellants  endeavored  to  distinguish  between  this 
trade  and  its  agency  for  the  public,  between  its 
banking  operations  and  those  qualities  which  it 
possesses  in  common  with  every  corporation,  such 
as  individuality,  immortality,  etc.  While  they 
seem  to  admit  the  right  to  preserve  this  corporate 
existence,  they  deny  the  right  to  protect  it  in  its 
trade  and  business. 


132  Interpretation  of  Political  Theory 


"  If  there  be  anything  in  this  distinction,  it  would 
tend  to  show  that  so  much  of  the  act  as  incorpo- 
rates the  bank  is  constitutional,  but  so  much  of  it 
as  authorizes  its  banking  operations  is  unconstitu- 
tional. Congress  can  make  the  inanimate  body, 
and  employ  the  machinery  as  a  depository  of,  and 
vehicle  for,  the  conveyance  of  the  treasure  of  the 
Nation,  if  it  be  capable  of  being  so  employed,  but 
cannot  breathe  into  it  the  vital  spirit  which  alone 
can  bring  it  into  useful  existence." 

The  Court  then  proceeded  to  show  the  essential 
unity  in  the  bank's  double  function. 

"Why  is  it  that  Congress  can  incorporate  or 
create  a  bank?  This  question  was  answered  in  the 
case  of  M'Cullough  v.  the  State  of  Maryland.  It 
is  an  instrument  which  is  'necessary  and  proper' 
for  carrying  on  the  fiscal  operations  of  the  Gov- 
ernment. Can  this  instrument,  on  any  rational 
calculation,  effect  its  object,  unless  it  be  endowed 
with  that  faculty  of  lending  and  dealing  in  money 
which  is  conferred  by  its  charter?  If  it  can,  if  it 
be  as  competent  to  the  purposes  of  Government 
without,  as  with  this  faculty,  there  will  be  much 
difficulty  in  sustaining  that  essential  part  of  the 
charter.  If  it  cannot,  then  this  faculty  is  necessary 
to  the  legitimate  operations  of  Government,  and 
was  constitutionally  and  rightfully  engrafted  on 
the  institution." 

The  Court  then  proceeds  to  prove  that  the  lend- 
ing and  dealing  in  money  is  the  "vital  part,"  the 
very  soul  of  the  institution. 

"  Deprive  a  bank  of  its  trade  and  business,  which 
is  its  sustenance,  and  its  immortalitv,  if  it  have 


Theory  of  the  United  States  Bank   133 

that  property,  will  be  a  very  useless  attribute. 
This  distinction  then  has  no  real  existence.  To 
tax  its  faculties,  its  trade,  and  occupation,  is  to  tax 
the  bank  itself.  To  destroy  or  preserve  one,  is  to 
destroy  or  preserve  the  other." 

This  decision  was  hailed  by  the  friends  of  the 
bank  with  delight.  It  had  recognized  the  right 
of  Congress  to  create  an  institution  which  could 
serve  the  Government's  financial  needs  unham- 
pered by  any  restrictions  in  its  private  functions 
as  a  banking  corporation.  But  political  changes 
were  gradually  being  effected  which  were  to  have 
a  wonderful  influence  in  shaping  the  affairs  of  the 
bank. 

Andrew  Jackson  was  just  beginning  to  attract 
the  attention  of  the  nation  when  the  decision  in 
the  case  of  Osborn  v.  the  United  States  Bank  was 
handed  down.  In  his  campaign  for  the  Presidency 
in  1828,  the  bank  was  not  an  issue.  Jackson  was 
opposed  by  Adams  and  the  issue  between  them 
was  a  personal  one.  It  was  simply  a  question  of 
whether  Adams  was  a  good  man,  who  merited 
reelection,  or  whether  Jackson  was  the  true 
representative  of  the  American  people.  Jackson 
was  elected,  and  very  soon  after  his  election  he 
began  to  manifest  that  aggressive  policy  that  has 
made  his  administration  one  of  the  most  notable 
in  the  history  of  the  country.  He  gave  notice 
that  he  would,  at  the  proper  time,  oppose  the 
recharter  of  the  United  States  Bank.  When  the 
bill  to  recharter  finally  came  to  him,  he  vetoed  it, 


134  Interpretation  of  Political  Theory 

taking  issue  in  his  veto  message  with  the  Supreme 
Court  on  the  constitutionality  of  the  bank.  He 
followed  in  the  footsteps  of  Jefferson  and  held  that 
a  bank  was  neither  necessary  nor  proper,  and  that 
for  Congress  to  attempt  to  effect  such  legislation 
was  a  plain  transgression  of  power.  But  in  the 
argument  advanced  in  this  message,1  Jackson 
used  a  novel  theory  as  to  the  mode  of  construction 
of  our  organic  law;  quite  at  variance  with  that 
accepted  and  promulgated  by  the  Supreme  Court. 

"  Each  public  officer  [said  he]  who  takes  an  oath 
to  support  the  Constitution,  swears  that  he  will 
support  it  as  he  understands  it  and  not  as  it  is 
understood  by  others.  The  opinion  of  the  judges 
has  no  more  authority  over  Congress  than  the 
opinion  of  Congress  has  over  the  judges,  and  on 
that  point  the  President  is  independent  of  both. 
The  authority  of  the  Supreme  Court  must  not, 
therefore,  be  permitted  to  control  Congress  or  the 
Executive  when  acting  in  their  legislative  capaci- 
ties, but  to  have  only  such  influence  as  the  force 
of  their  reasoning  may  deserve." 

The  obvious  result  of  this  doctrine  would  be  to 
bestow  upon  the  President  or  Congress  the  right 
to  pass  upon  the  constitutionality  of  an  act,  and 
to  give  either  the  same  weight  as  that  bestowed 
upon  the  Supreme  Court.  According  to  Jackson's 
theory  he  had  the  right  to  deny  the  constitutional- 
ity of  the  bank  with  an  authority  equal  to  that  of 
the  Supreme  Court  in  affirming  it. 

1  See  Veto  Message  of  July  10,  1832. 


Theory  of  the  United  States  Bank   135 

In  his  message  of  1829  Jackson  claimed  also 
that  the  bank  had  "failed  in  the  great  end  of 
establishing  a  uniform  and  sound  currency. "  The 
bank  had  also  suffered  some  loss  of  prestige,  due 
to  the  mismanagement  of  its  officials,  but  when 
this  condition  came  to  the  attention  of  the  direc- 
tors, they  removed  those  officials  from  office,  and 
placed  the  bank's  affairs  in  competent  hands.  In 
opposition  to  the  attack  made  by  Jackson,  the 
leaders  of  the  National-Republican  party,  among 
these  being  Webster  and  Clay,  rallied  to  the 
bank's  support.  With  this  alignment,  the  bank 
became  the  chief  issue  in  the  campaign  of  1832. 
Jackson  was  reflected,  and  through  his  influence 
the  bill  to  recharter  was  defeated.  The  bank  then 
took  out  a  state  charter  and  continued  business 
until  1841  when  it  failed. 

The  verdict  of  Congress  and  the  attitude  of  the 
President  did  not  convince  an  able  minority  in 
Congress  and  a  large  number  of  the  people  outside 
of  Congress  of  the  wisdom  of  the  course.  The 
earlier  attitude  of  the  Supreme  Court  had  con- 
vinced many  that  the  constitutionality  of  the 
bank  was  beyond  question,  and  that  the  issue 
could  only  be  one  of  expediency  or  economic 
policy.  Many  thought  the  bank  should  on  these 
grounds  be  rechartered.  The  Democratic  party 
took  the  opposite  view  and  consistently  opposed 
the  bank  for  the  next  thirty  years.  The  Demo- 
cratic platform  of  1836  (which  was  really  not  a 
platform  in  the  modern  sense,  but  a  party  declara- 


136  Interpretation  of  Political  Theory 

tion  made  by  the  Democrats  of  New  York,  and 
conceded  to  be  the  prevailing  view  of  the  party 
throughout  the  country)  said:  "We  declare  un- 
qualified hostility  to  bank  notes  and  paper  money 
as  circulating  medium,  because  gold  and  silver  is 
the  only  safe  and  constitutional  currency;  hostility 
to  any  and  all  monopolies  by  legislation,  because 
they  are  violations  of  equal  rights  of  all  the 
people."  Four  years  later,  at  the  convention  in 
Baltimore,  where  Van  Buren  was  nominated  for 
President,  the  Democratic  platform  had  a  more 
specific  plank  in  opposition  to  the  bank;  the  sixth 
resolution  declared, 

"  that  Congress  had  no  power  to  charter  a  United 
States  bank;  that  we  believe  such  an  institution 
one  of  deadly  hostility  to  the  best  interests  of  the 
country,  dangerous  to  our  republican  institutions 
and  the  liberties  of  the  people;  and  calculated  to 
place  the  business  of  the  country  within  the  con- 
trol of  a  concentrated  money  power  and  above  the 
laws  and  will  of  the  people. " 

This  resolution,  in  practically  the  same  language, 
was  incorporated  in  the  Democratic  platforms  of 
1852  and  1856. 

In  the  early  period  of  the  bank  controversy  the 
Democrats  were  opposed  by  the  National-Republi- 
cans. But  about  1834  the  Whigs  came  into  exis- 
tence as  the  opposers  of  Jackson  and  the  Jackson 
policies.  This  party  was  destined  to  play  an 
important  part  in  the  political  history  of  the 


Theory  of  the  United  States  Bank   137 

country  from  1834  to  J856.  "The  Whigs  were 
never  a  party  of  fixed  principles  and  harmonious 
purpose. "  The  party  had  its  origin  in  the  general 
opposition  to  Jackson,  and  its  attempt  to  unite 
in  one  political  party  all  the  factions  antagonistic 
to  Jackson  made  it  impossible  to  secure  support 
through  sound  political  principle  and  party  con- 
sistency. The  Whigs  did  not  in  any  of  their 
platforms  declare  in  favor  of  the  bank;  but  their 
opposition  to  Jackson,  their  nomination  of  Clay 
in  1844  for  the  Presidency,  and  the  public  utter- 
ances of  their  party  leaders,  reveal  the  general 
sympathy  of  the  party  for  the  bank.  This  was  the 
status  of  the  question  at  the  beginning  of  the  Civil 
War. 

Out  of  the  exigencies  of  the  Civil  War  arose  the 
real  solution  of  the  bank  question.  To  meet  the 
financial  demands  of  the  war,  the  Government 
was  compelled  both  to  borrow  money  directly  and 
to  issue  bonds.  To  create  a  demand  for  the  bonds, 
Secretary  Chase,  Treasurer  of  the  United  States, 
proposed  that  certain  banking  privileges  should  be 
offered  to  aid  the  sale  of  the  bonds.  In  conformity 
to  the  recommendations  of  Secretary  Chase,  Con- 
gress, in  February,  1863,  passed  the  National 
Banking  Act.  This  act  never  became  the  subject 
of  attack  on  constitutional  grounds.  The  United 
States  banks  had  been  opposed  principally  be- 
cause they  were  monopolies  created  by  legislation 
and  "calculated  to  place  the  business  of  the 
country  within  the  control  of  a  concentrated 


138  Interpretation  of  Political  Theory 

money  power."  The  act  of  1863  was  free  from 
this  objection,  as  the  banking  was  to  be  under 
private  direction  with  only  a  Federal  regulation. 

But  with  the  passage  of  the  National  Banking 
Act  of  1863,  the  bank  question  was  to  take  a  new 
form.  The  interest  of  the  banks  under  Federal 
regulation  was  destined  to  come  into  conflict  with 
the  state  banks  over  the  country.  The  nature 
of  the  conflict  is  briefly  described  by  a  leading 
authority x  as  follows : 

"The  fiscal  advantages  of  the  national  banking 
system  were  equally  important  and  enduring.  For 
the  uncertainties  of  seven  thousand  varieties  of 
State  bank  notes  issued  by  fifteen  hundred  private 
banks  that  were  chartered  by  twenty-nine  State 
legislatures  of  varying  financial  proclivities,  was 
substituted  a  uniform  currency  whose  redemption 
was  guaranteed  by  bonds  of  the  United  States. 
The  State  banks  could  make  but  a  losing  fight 
against  such  odds." 

But  in  addition  to  this  advantage,  Congress,  to 
give  a  deathblow  to  the  circulation  of  state  bank 
notes,  on  March  3,  1865,  passed  a  law  placing  a 
tax  of  ten  per  cent,  per  annum  upon  the  state 
issues  of  bank  notes.  The  national  banks  were 
made  to  some  extent  the  depositories  of  the  public 
funds.  Naturally  those  interested  in  the  state 
banks  were  violently  opposed  to  the  act  of  1865. 
The  right  of  Congress  to  enact  this  law  was 
strenuously  denied.  It  was  believed  to  be  an 

1  Coman's  Industrial  History  of  the  United  States,  p.  271. 


Theory  of  the  United  States  Bank   139 

invasion  of  state  authority.1  The  question  was 
destined  to  be  settled  by  the  Supreme  Court  before 
it  became  a  matter  for  serious  party  difference. 

On  December  13,  1869,  the  question  of  the  con- 
stitutionality of  this  tax  was  decided  in  the  case 
of  Veazie  Bank  v.  Fenno2  in  a  brief  but  important 
decision.  The  plaintiff's  brief  in  denying  this 
power  to  Congress  was  very  strong.  Among  other 
points  made  in  the  brief  was  the  following: 

"  We  insist,  further,  that  the  tax  excepted  to  in 
this  case  is  unconstitutional  on  the  following 
grounds:  It  is  not  a  tax  imposed  for  the  sake  of 
revenue.  Its  excessive  character,  which  is  made 
evident  by  the  reference  to  the  tax  imposed  on 
the  circulation  of  the  national  banks  already 
cited,  proves  that  the  true  purpose  of  this  tax  is 
to  destroy  the  State  banks. 

"  If  Congress,  by  discriminating  taxation,  can 
destroy  the  State  banks,  it  can  equally,  in  the 
same  manner,  destroy  the  railroad  system  of  the 
States." 

Attorney-General  Hoar  answered  for  the  de- 
fendant, touching  these  points  as  follows: 

"  Congress  would  have  the  constitutional  right 
to  prohibit  what  it  thus  undertakes  to  tax,  and 
whatever  it  may  prohibit  (non  malum  in  se),  it 
may  regulate  or  permit  upon  condition.  If  Con- 
gress has  the  power  to  tax,  the  degree  of  taxation 
is  not  to  be  regarded  by  this  Court,  but  is  within 

'See  Hawthorne-Schouler-Andrew,  Hist,  of  U.  S.,  vol.  vii., 
pp.  282  et  seq.  *  18  Wallace,  482. 


140  Interpretation  of  Political  Theory 

the  discretion  of  Congress,  the  motive  of  which 
cannot  be  inquired  into  within  the  scope  of  its 
constitutional  function.  The  power  to  tax  in- 
cludes the  power  to  make  taxation  burdensome 
or  even  destructive  to  particular  branches  of 
business." 

Chief  Justice  Chase  delivered  the  opinion  of  the 
Court,  and  it  is  a  significant  fact  that  he  had, 
before  coming  to  the  Bench,  been  the  most  im- 
portant factor  in  effecting  the  legislation  now 
under  consideration.  After  tracing  the  history 
of  Congressional  legislation  to  show  that  there 
had  been  previously  a  tendency  to  "discriminate 
for,  rather  than  against,  the  circulation  of  state 
banks,"  the  Court  then  declared  that  when  the 
country  had  been  sufficiently  furnished  with  a 
national  currency  by  the  issue  of  United  States 
notes,  the  discrimination  had  been  turned  decid- 
edly in  the  opposite  direction.  The  Court  then 
raised  and  proceeded  to  answer  two  questions: 
(i)  Is  this  a  direct  tax  and  has  it  been  appor- 
tioned among  the  several  states  agreeably  to  the 
Constitution?  This  question  was  answered  in  the 
affirmative.  (2)  Is  an  act  imposing  a  tax  which 
impairs  a  franchise  granted  by  a  state,  a  power 
granted  to  Congress  within  the  meaning  of  the 
Constitution?  The  Court  said  on  this  point, 

"  that  it  cannot  be  admitted  that  franchises  granted 
by  a  State  are  necessarily  exempt  from  taxation; 
for  franchises  are  property,  often  very  valuable 
and  productive  property;  and  when  not  conferred 


Theory  of  the  United  States  Bank   141 

for  the  purpose  of  giving  effect  to  some  reserved 
power  of  a  State,  seem  to  be  as  properly  objects 
of  taxation  as  any  other  property.  It  is  insisted, 
however,  that  the  tax  in  the  case  before  us  is 
excessive,  and  so  excessive  as  to  indicate  on  the 
part  of  Congress  a  purpose  to  destroy  the  franchise 
of  the  bank,  and  is,  therefore,  beyond  the  constitu- 
tional power  of  Congress.  The  first  answer  is  that 
the  judicial  cannot  prescribe  to  the  legislative 
department  of  the  Government  limitations  upon 
the  exercise  of  its  acknowledged  powers.  But 
there  is  another  answer  which  vindicates  equally 
the  wisdom  and  power  of  Congress.  It  cannot  be 
doubted  that  under  the  Constitution  the  power  to 
provide  a  circulating  medium  of  coin  is  given  to 
Congress.  And  it  is  settled  by  the  uniform 
practice  of  the  Government,  and  by  repeated 
discussions,  that  Congress  may  constitutionally 
authorize  the  emission  of  bills  of  credit.  Having 
thus,  in  the  exercise  of  undisputed  constitutional 
powers,  undertaken  to  provide  a  currency  for  the 
whole  country,  it  cannot  be  questioned  that  Con- 
gress may,  constitutionally,  secure  the  benefit  of 
it  to  the  people  by  appropriate  legislation.  To 
this  end,  Congress  has  denied  the  quality  of  legal 
tender  to  foreign  coins,  and  has  provided  by  law 
against  the  imposition  of  counterfeit  and  base 
coin  on  the  community.  To  the  same  end,  Con- 
gress may  restrain,  by  suitable  enactments,  the 
circulation  as  money  of  any  notes  not  issued  under 
its  own  authority." 

Justice  Nelson  gave  a  dissenting  opinion  in  this 
case  that  was  not  answered  in  the  majority 
opinion,  and  which  could  hardly  be  controverted. 
On  the  second  point  under  consideration  he  said: 


142  Interpretation  of  Political  Theory 

"  The  constitutional  authority  of  the  State  to 
create  these  institutions,  and  to  invest  them  with 
full  banking  powers,  is  hardly  denied.  But  it  may 
be  useful  to  recur  for  a  few  moments  to  the  source 
of  this  authority.  The  Tenth  Amendment  to  the 
Constitution  is  as  follows:  'The  powers  not 
delegated  to  the  United  States  by  the  Constitu- 
tion, nor  prohibited  by  it  to  the  States,  are  re- 
served to  the  States  respectively.'  On  looking 
into  the  Constitution,  it  will  be  found  that  there 
is  no  clause  or  provision  which,  either  expressly  or 
by  reasonable  implication,  delegates  this  power  to 
the  Federal  Government,  which  originally  be- 
longed to  the  States,  nor  which  prohibits  it  to 
them.  In  the  discussion  of  the  subject  of  the 
creation  of  the  first  Bank  of  the  United  States,  in 
the  First  Congress,  and  in  the  cabinet  of  Washing- 
ton, in  1790  and  1791,  no  question  was  made  as 
to  the  constitutionality  of  the  State  banks.  The 
only  doubt  that  existed,  and  which  divided  the 
opinion  of  the  most  eminent  statesmen  of  the  day, 
many  of  whom  had  just  largety  participated  in  the 
formation  of  the  Constitution,  the  Government 
under  which  they  were  then  engaged  in  organizing, 
was,  whether  or  not  Congress  possessed  a  con- 
current power  to  incorporate  a  banking  institution 
of  the  United  States." 

Justice  Nelson  concluded  by  saying  that  the 
effect  of  this  decision  would  be  to  put  the  state 
banks  out  of  business.  The  immediate  effect  was 
to  declare  practically  that  state  banks  were  uncon- 
stitutional, because  it  was  generally  believed  that 
the  function  of  issuing  a  circulating  medium  was 
a  necessary  attribute  of  a  bank. 


Theory  of  the  United  States  Bank   143 

With  this  decision  the  bank  as  a  political  issue 
came  to  an  end.  There  will  doubtless  be  bank 
issues  in  the  future,  but  they  will  be  based  on 
economic  policy  rather  than  on  constitutional 
principle.  The  bank  controversy  had  the  effect 
of  furnishing  the  subject-matter  from  which  the 
judiciary  has  planted  deeply  the  doctrine  of  im- 
plied powers,  as  well  as  of  stimulating  thought  out 
of  which  there  has  evolved  a  financial  system  of 
wonderful  efficiency.  Time  has  proved  that  in 
spite  of  an  occasional  abuse  of  power  the  fears  of 
its  opponents  that  it  would  result  in  a  monopo- 
listic money  power  have  proved  groundless.  It  is 
the  universal  opinion  of  the  leaders  of  all  political 
parties  that  the  banks,  as  they  are  organized  to- 
day, are  among  the  greatest  agencies  in  the  up- 
building of  the  nation. 


CHAPTER  VII 

THEORY  OF  LEGAL  TENDER 

ONE  of  the  earliest  problems  that  confronted 
the  colonists  was  that  of  providing  a  stable 
medium  of  exchange  to  meet  the  demands  of  an 
expanding  trade.  There  was  not  a  sufficient 
amount  of  gold  and  silver  to  pay  for  the  commodi- 
ties brought  over  from  England.  The  largest 
amount  of  specie  came  from  the  West  Indies  and 
other  southern  Spanish  colonies,  which  was  re- 
ceived from  the  sale  of  lumber,  salt  fish,  etc.,  but 
this  trade  did  not  bring  in  sufficient  coin  to  supply 
the  demand  for  a  medium  of  exchange.  Mints 
were  established  in  several  colonies,  but  even  this 
did  not  solve  the  difficulty.  It  was  necessary, 
even  then,  to  use  many  staple  articles  such  as  to- 
bacco, corn,  etc.,  as  a  medium  to  facilitate  trade. 
But  it  is  probable  that  the  first  substitute  for  coin 
to  be  used  was  the  Indian  "wampum,"  which  was 
a  shell  that  passed  as  money  among  the  Indians, 
and  which  was  made  use  of  by  the  colonists  in 
their  trade  with  the  Indian  tribes.  We  learn  from 
Hutchinson's  History  of  Massachusetts  that  bills 
of  credit  were  first  emitted  in  that  colony  in  1690. 

144 


Theory  of  Legal  Tender          145 

Soon  after  this  we  find  most  of  the  colonies  issuing 
bills  of  credit,  but  in  evidence  of  unsatisfactory 
results,  laws  were  soon  passed  to  prevent  the 
further  issue  of  such  bills. * 

The  right  of  the  colonies  to  issue  bills  of  credit  was 
never  seriously  questioned  by  England,  but  such 
bills  were  denied  circulation  as  legal  tender  by 
that  country  in  payment  for  English  commodities. 
But  upon  the  breaking  out  of  the  Revolutionary 
War,  some  of  the  colonies,  notably  Massachusetts, 
ignored  the  prohibition  of  Parliament,  and  en- 
dowed their  bills  with  the  power  of  legal  tender. 
With  the  deathblow  to  English  supremacy  in 
America,  the  colonies  inherited  full  power  to  make 
their  bills  of  credit  legal  tender  within  their  own 
jurisdiction.  In  the  meantime  the  colonies  had 
delegated  to  the  Continental  Congress  power  to 
issue  bills  of  credit  in  the  following  words:  "The 
United  States,  in  Congress  assembled,  shall  have 
authority  to  borrow  money  or  emit  bills  on  the 
credit  of  the  United  States,  transmitting  every 
half  year  to  the  respective  States  an  account  of  the 
sums  of  money  so  borrowed  or  emitted."2  And 
Article  XII.  of  this  document  says:  "All  bills  of 
credit  emitted,  moneys  borrowed,  and  debts  con- 
tracted by  or  under  the  authority  of  Congress  shall 
be  a  charge  against  the  United  States";  but  the 
power  to  make  these  bills  a  legal  tender  was 
nowhere  expressly  given  to  Congress,  and  it  is, 

1  See  Coman's  Industrial  History  of  the  United  States,  p.  83. 
3  Articles  of  Confederation,  Article  IX. 


146  Interpretation  of  Political  Theory 

therefore,  assumed  that  this  power  was  reserved 
to  the  colonies. 

The  historical  development  of  the  legal  tender 
theory  was  carefully  traced  in  a  learned  opinion 
by  Mr.  Justice  Bradley  in  Knox  v.  Lee  and 
Parker  v.  Davis. x 

"  In  this  country,  the  habit  had  prevailed  from 
the  beginning  of  the  eighteenth  century,  of  using 
bills  of  credit;  and  the  Revolution  of  Independence 
had  just  been  achieved  in  great  degree  by  the 
means  of  similar  bills  issued  by  the  Continental 
Congress.  These  bills  were  generally  made  a  legal 
tender  for  the  payment  of  all  debts,  public  and 
private,  until,  by  the  influence  of  the  English 
merchants  at  home,  Parliament  prohibited  the 
issue  of  bills  with  that  quality.  This  prohibition 
was  first  exercised  in  1751,  against  the  New  Eng- 
land colonies;  and  subsequently,  in  1763,  against 
all  the  colonies.  It  was  one  of  the  causes  of  dis- 
content which  finally  culminated  in  the  Revolu- 
tion. Dr.  Franklin  endeavored  to  obtain  a  repeal 
of  the  prohibitory  acts,  but  only  succeeded  in 
obtaining  from  Parliament,  in  1773,  an  act  au- 
thorizing the  colonies  to  make  their  bills  receivable 
for  taxes  and  debts  due  to  the  colony  that  issued 
them.  At  the  breaking  out  of  the  war,  the  Conti- 
nental Congress  commenced  the  issue  of  bills  of 
credit,  and  the  war  was  carried  on  without  other 
resources  for  three  or  four  years.  It  may  be  said 
with  truth,  that  we  owe  our  National  Independence 
to  the  use  of  this  fiscal  agency.  Dr.  Franklin,  in 
a  letter  dated  from  Paris,  in  April,  1779,  after 
deploring  the  depreciation  which  the  continental 
currency  had  undergone,  said:  'The  only  conso- 

1  12  Wallace,  315. 


Theory  of  Legal  Tender          147 

lation  under  the  evil  is,  that  the  public  debt  is 
proportionately  diminished  by  the  depreciation; 
and  this  by  a  kind  of  imperceptible  tax,  every  one 
having  paid  a  part  of  it  in  the  fall  of  value  that 
took  place  between  the  receiving  and  paying  such 
sums  as  passed  through  his  hands.'  He  adds: 
'This  effect  of  paper  currency  is  not  understood 
on  this  side  of  the  water.  And,  indeed,  the  whole 
is  a  mystery  even  to  the  politicians,  how  we  have 
been  able  to  continue  a  war  four  years  without 
money,  and  how  we  could  pay  with  paper,  that 
had  no  previously  fixed  fund  appropriated  es- 
pecially to  redeem  it.  This  currency,  as  we 
manage  it,  is  a  wonderful  machine.  It  performs 
its  office  when  we  issue  it;  it  pays  and  clothes 
troops,  and  provides  victuals  and  ammunition.'1 
The  continental  bills  were  not  made  legal  tender 
at  first,  but  in  January,  1777,  the  Congress  passed 
resolutions  declaring  that  they  ought  to  pass 
current  in  all  payments,  and  be  deemed  in  value 
equal  to  the  same  nominal  sums  in  Spanish 
dollars,  and  that  any  one  refusing  so  to  receive 
them  ought  to  be  deemed  an  enemy  to  the  liber- 
ties of  the  United  States;  and  recommending  to 
the  legislatures  of  the  several  States  to  pass  laws 
to  that  effect.2  Congress  seems  to  have  clearly 
recognized  the  exclusive  power  of  the  colonies  to 
make  bills  of  credit  legal  tender." 

The  Court,  continuing,  said: 

' '  Massachusetts  and  other  colonies,  on  the  break- 
ing out  of  the  war,  disregarded  the  prohibitions 
of  Parliament  and  again  conferred  upon  their  bills 

1  Franklin's  Works,  vol.  viii.,  p.  329. 

*  Journal  of  Congress,  volume  iii.,  pp.  19  and  20.  Pitkin's 
History,  volume  ii.,  p.  155. 


148  Interpretation  of  Political  Theory 

the  quality  of  legal  tender.1  The  Continental 
Congress  not  being  a  regular  government,  and 
not  having  the  power  to  make  laws  for  the  regula- 
tion of  private  transactions,  referred  the  matter 
to  the  State  legislatures." 

This  brings  us  to  a  consideration  of  the  theory 
of  legal  tender  under  our  present  Constitution. 
Has  the  Congress  of  the  United  States  the  power 
to  make  bills  of  credit  a  legal  tender?  The  Con- 
stitution, as  adopted  by  the  Constitutional  Con- 
vention, is  silent  on  this  point.  But  this  question 
had  the  serious  consideration  of  the  Constitutional 
Convention.  The  original  draft  of  the  Constitu- 
tion, as  reported  by  the  Committee  on  Detail, 
gave  to  Congress  the  power  "to  borrow  money, 
and  emit  bills  on  the  credit  of  the  United  States. " 
But  ten  days  later  the  convention  eliminated  the 
words  "emit  bills"  by  a  vote  of  nine  to  two  states, 
only  New  Jersey  and  Maryland  being  in  favor  of 
retaining  this  phrase.2  The  proceedings  of  the 
Convention  touching  this  point  are  interesting  in 
the  light  of  the  present  attitude  of  the  Supreme 
Court  upon  the  question.  There  can  be  no  doubt 
that  if  the  Convention  were  opposed  to  expressly 
giving  to  Congress  the  power  to  emit  bills  of 
credit,  it  would  have  been  far  from  their  desire  to 
allow  them,  if  issued  under  some  implied  power  of 
Congress,  to  be  made  legal  tender  for  the  payment 

'Bancroft's  History,  volume  vii.,  p.  324. 

2  See  Madison's  Journal  of  the  Federal  Convention  (Scott's 
Edition),  pp.  454,  543. 


Theory  of  Legal  Tender          149 

of  private  debts.  The  Convention  did  take  the 
precaution  to  deny  the  power  to  the  states  of 
emitting  bills  of  credit.1 

This  limitation  upon  the  power  of  the  several 
states  had  ample  justification.  Mr.  Justice  Mar- 
tin, in  the  Metropolitan  Bank  v.  Van  Dyck,a 
justifies  the  wisdom  of  the  Convention  upon  this 
point  in  the  following  language : 

"  Considering  the  subject  or  object  of  these 
powers,  and  the  circumstance  that  the  people  were 
members  of  other  bodies  politic  possessing  certain 
powers  in  common  with  all  independent  states, 
which  powers,  if  exercised  by  them,  would  em- 
barrass, derange,  and  might  effectually  destroy 
the  common  system  established  by  the  Federal 
Government,  it  was  absolutely  necessary  to  impose 
certain  prohibitions  upon  these  other  bodies  politic 
—the  States.  Among  these  prohibitions,  I  have 
always  regarded  (so  far  as  the  peace  of  the  States 
and  the  harmony  of  the  system  are  concerned) 
those  which  prohibit  the  States  from  making  any- 
thing but  gold  or  silver  coin  a  tender  for  the 
payment  of  debts,  and  from  passing  any  law 
impairing  the  obligation  of  contracts,  as  of  su- 
preme importance.  If  these  powers  had  been 
suffered  to  remain  with  the  States,  it  is  quite 
obvious  that  difficulty  between  the  people  of 
different  States  would  soon  have  arisen,  endanger- 
ing peace  and  harmony  between  them.  Distrust 
would  have  existed,  and  there  would  have  been 
an  absence  of  that  confidence  necessary  as  a  base 
for  commercial  and  other  intercourse  between 

1  See  Constitution,  Article  I.,  Section  X. 

•27  New  York,  515;  also  The  Federalist  Papers,  No.  XLIII. 


150  Interpretation  of  Political  Theory 

them.  Independent  nations  may  protect  their 
merchants  and  citizens  from  the  frauds  of  other 
nations  consequent  upon  a  debasement  of  the  coin 
or  a  change  of  the  measure  of  value  in  which  debts 
are  to  be  paid  (or  the  depreciation  of  a  national 
paper  currency)  or  for  a  neglect  or  refusal  to  pay, 
by  a  resort  to  war.  But  the  States  have  no  right 
or  power  to  make  war  upon  each  other,  and  they 
are  prohibited  from  doing  certain  things  which 
might  be  a  just  cause  of  war;  and  the  people  have 
entrusted  the  regulation  of  these  subjects  to  a 
general  common  government." 

The  wisdom  of  denying  to  the  states  the  right 
of  issuing  bills  of  credit  was  recognized  by  the 
states,  and  very  generally  accepted  without  pro- 
test. The  only  question  that  arose  was  as  to 
what  constituted  a  bill  of  credit  hi  the  constitutional 
sense.  This  question  was  answered  in  the  decision 
of  the  Supreme  Court  in  the  cases  of  Craig  v. 
Missouri1  and  Briscoe  v.  Bank  of  Kentucky.2  In 
the  former  case  the  Court  said  that  "to  constitute 
a  bill  of  credit  within  the  Constitution  it  must  be 
issued  by  a  State,  and  be  designed  to  circulate  as 
money."  A  more  difficult  question  arose  in  the 
case  of  Darrington  v.  Missouri3  in  which  the 
Supreme  Court,  speaking  through  Chief  Justice 
Marshall,  applied  this  constitutional  restriction 
of  the  states  to  certain  loan  certificates.  The 
statute  under  review  was  "An  act  for  the  establish- 
ment of  loan  offices, "  which  attempted  to  compel 
certain  certificates  to  be  accepted  "at  the  treasury 

1  II  Peters,  257.  a  4  Peters,  410.  *  13  Howard,  12. 


Theory  of  Legal  Tender          151 

of  any  loan  office  in  the  State  of  Missouri  in  dis- 
charge of  taxes  or  debts  due  the  State."  Justice 
Marshall  in  this  case  defined  "bills  of  credit"  as 
"a  paper  medium  intended  to  circulate  between 
individuals  and  between  government  and  indi- 
viduals for  the  ordinary  purposes  of  society." 
After  carefully  reviewing  the  history  of  these  bills 
and  showing  their  mischievous  effects,  he  classed 
them  as  bills  of  credit,  and  declared  the  sections 
of  the  law  relating  to  these  certificates  unconstitu- 
tional. This  decision  was  rendered  at  the  January 
term  of  the  Court  in  1830.  The  broad  application 
here  given  to  the  restriction  had  the  effect  of  giving 
full  effect  to  the  constitutional  provision  without 
further  question  on  the  part  of  the  states.  The 
more  complicated  question  of  the  power  of  the 
Federal  Government  to  emit  such  bills  and  to 
make  them  legal  tender  was  not  to  be  answered 
until  more  than  a  generation  later. 

With  the  beginning  of  the  Civil  War  and  the 
problem  of  securing  revenue  with  which  to  main- 
tain an  armed  force,  Congress  was  compelled  to 
resort  to  an  indirect  credit  system,  which  would 
have  hardly  been  resorted  to  in  times  of  peace. 
Under  the  power  to  borrow  money,  Congress  pro- 
vided for  the  issue  of  treasury  notes  designed  to 
circulate  as  money.  Under  the  established  doc- 
trine of  implied  powers,  this  power  could  not  be 
questioned;  but  Congress  went  further  and  made 
these  notes  legal  tender  for  the  payment  of  all 
debts  due  to  the  United  States,  and,  also,  for  the 


152  Interpretation  of  Political  Theory 

discharge  of  all  private  debts.  To  make  these 
notes  legal  tender  for  debts  due  the  United  States 
had  already  been  recognized,  but  to  make  them 
legal  tender  in  payment  of  debts  of  a  private 
nature  was  new  and  a  power  upon  which  issue  was 
to  be  joined. 

While  few  questioned  the  power  of  Congress  to 
issue  paper  money,  many  opposed  such  an  act  on 
economic  grounds.  This  opposition  had  mani- 
fested itself  as  a  corollary  to  the  opposition  to  the 
United  States  Bank  at  an  earlier  date.  In  1836, 
the  Democratic  platform,  upon  which  Martin  Van 
Buren  was  elected,  declared  "hostility  to  bank 
notes  and  paper  money  as  a  circulating  medium. " 
The  Republican  platform  of  1864  made  the  Legal 
Tender  Act  a  real  issue  by  declaring  "that  it  is  the 
duty  of  every  loyal  State  to  sustain  the  credit  and 
to  promote  the  use  of  the  national  currency." 
Under  normal  conditions  this  would  have  resulted 
in  making  the  Legal  Tender  Act  the  paramount 
issue  before  the  people. 

The  soundness  of  the  act  was  very  generally 
questioned,  which  had  the  effect  of  bringing  it 
before  the  courts,  and  at  a  very  early  date  after 
its  enactment,  before  the  Supreme  Court.  The 
earliest  cases1  grew  out  of  the  refusal  to  accept 
tenders  in  currency  when  gold  or  silver  were 
specified  in  the  contracts.  It  was  uniformly  held 
that  such  tenders  were  insufficient  because  the 

1  Bronson  v.  Rodes,  7  Wallace,  229;  Butler  t>.  Harwitz,  7 
Wallace,  256;  Bronson  v.  Kimpton,  8  Wallace,  444. 


Theory  of  Legal  Tender          153 

terms  of  the  contract  had  not  been  complied  with. 
None  of  these  cases  went  into  the  constitutionality 
of  the  act. 

The  constitutionality  of  the  Legal  Tender  Act 
of  1862  came  before  the  Supreme  Court  for  con- 
sideration in  the  case  of  Hepburn  v.  Griswold,1 
and  the  decision  was  handed  down  February  7, 
1870.  Chief  Justice  Chase,  who  rendered  the 
decision,  held  the  act  unconstitutional.  The 
Court  determined  the  issue  upon  the  question  as 
to  the  limitation  of  the  implied  powers  of  Congress. 
The  principle  laid  down  in  M'Cullough  v.  the  State 
of  Maryland  was  used  as  a  text.  "Let  the 
end  be  legitimate,  let  it  be  within  the  scope  of 
the  Constitution,  and  all  means  which  are  ap- 
propriate, which  are  plainly  adapted  to  that  end, 
which  are  not  prohibited,  but  consistent  with  the 
spirit  and  letter  of  the  Constitution,  are  constitu- 
tional."  The  Chief  Justice  then  contrasts  "ap- 
propriate" acts  with  those  which  might  in  a  vague, 
indefinite  way  promote  an  object  within  Congres- 
sional power.  To  stretch  the  Constitution  to 
cover  the  latter  under  the  doctrine  of  implied 
power,  he  contends,  would  result  in  both  confusion 
and  danger. 

"  It  would  convert  the  Government,  which  the 
people  ordained  as  a  Government  of  limited 
powers,  into  a  Government  of  unlimited  powers. 
It  would  confuse  the  boundaries  which  separate 
the  executive  and  judicial  from  the  legislative 

1  8  Wallace,  513. 


154  Interpretation  of  Political  Theory 

authority.  It  would  obliterate  every  criterion 
which  this  Court,  speaking  through  the  vene- 
rated Chief  Justice  in  the  case  already  cited,  has 
established  for  the  determination  of  the  question 
whether  legislative  acts  are  constitutional  or 
unconstitutional.  We  are  unable  to  persuade  our- 
selves that  an  expedient  of  this  sort  is  an  appropri- 
ate and  plainly  adapted  means  for  the  execution 
of  the  power  to  declare  and  carry  on  war.  If  it 
adds  nothing  to  the  utility  of  the  notes,  it  cannot 
be  upheld  as  a  means  to  the  end  in  furtherance  of 
which  the  notes  are  issued.  Nor  can  it,  in  our 
judgment,  be  upheld  as  such,  if,  while  facilitating 
in  some  degree  the  circulation  of  the  notes,  it 
debases  and  injures  the  currency  in  its  proper  use 
to  a  much  greater  degree. 

"  But  there  is  another  view  which  seems  to  us 
decisive,  to  whatever  expressed  power  the  sup- 
posed implied  power  in  question  may  be  referred. 
In  the  rule  stated  by  Chief  Justice  Marshall,  the 
words  appropriate,  plainly  adapted,  really  calcu- 
lated, are  qualified  by  the  limitations  that  the 
means  must  be  not  prohibited,  but  consistent 
with  the  letter  and  spirit  of  the  Constitution. 
Nothing  so  prohibited  or  inconsistent  can  be 
regarded  as  appropriate,  or  plainly  adapted,  or 
really  calculated  means  to  any  end. 

"  Let  us  inquire  then,  first,  whether  making  bills 
of  credit  a  legal  tender  to  the  extent  indicated 
is  consistent  with  the  spirit  of  the  Constitution. 
Among  the  great  cardinal  principles  of  that  instru- 
ment no  one  is  more  conspicuous  or  more  venerable 
than  the  establishment  of  justice.  And  what  was 
intended  by  the  establishment  of  justice  in  the 
minds  of  the  people  who  ordained  it,  is,  happily, 
not  a  matter  of  disputation.  It  is  not  left  to  in- 
ference or  conjecture,  especially  in  its  relations 


Theory  of  Legal  Tender          155 

to  contracts.  It  is  then  argued  that,  although 
there  is  no  expressed  prohibition  on  the  United 
States,  as  there  is  on  the  States,  to  pass  laws  im- 
pairing the  obligation  of  contracts,  still  by  the 
general  force  and  tenor  of  the  Constitution  they 
are  prohibited  from  passing  any  such  laws,  except 
such  as  only  impair  them  incidentally.  The  Legal 
Tender  Act  is  held  to  impair  the  obligation  of 
contracts  and  also  to  be  in  violation  of  the  Fifth 
Amendment,  which  provides  that,  'No  person 
shall  be  deprived  of  life,  liberty,  or  property  with- 
out due  process  of  law,  nor  shall  private  property  be 
taken  for  public  use  without  just  compensation. ' ' 

The  Court  concludes  as  follows : 

"  To  uphold  this  doctrine  would  carry  the  doc- 
trine of  implied  powers  very  far  beyond  any  extent 
hitherto  given  to  it.  It  asserts  that  whatever  in 
any  degree  promotes  an  end  within  the  scope  of  a 
general  power,  whether,  in  the  correct  sense  of  the 
word,  appropriate  or  not,  may  be  done  in  the 
exercise  of  an  implied  power.  We  are  obliged  to 
conclude  that  an  act  making  mere  promises  to  pay 
dollars  a  legal  tender  in  payment  of  debts  pre- 
viously contracted,  is  not  a  means  appropriate, 
plainly  adapted,  really  calculated  to  carry  into 
effect  any  express  power  vested  in  Congress;  that 
such  an  act  is  inconsistent  with  the  spirit  of  the 
Constitution;  and  that  it  is  prohibited  by  the 
Constitution." 

The  effect  of  this  decision  was  to  arouse  wide- 
spread interest  in  the  question,  and  to  draw  more 
intensely  the  party  lines  with  reference  to  it.  The 
Republican  party  disagreed  with  reference  to  this 


156  Interpretation  of  Political  Theory 

issue.  In  the  Republican  platform  of  1872,  two 
years  after  this  decision,  and  upon  which  Grant 
ran  and  was  elected  President,  the  boast  was  made 
that  "a  uniform  national  currency  has  been  pro- 
vided, and  repudiation  frowned  down";  while  the 
Liberal  Republican  platform,  with  Horace  Greeley 
as  the  advocate,  favored  a  "speedy  return  to 
specie  payment  as  demanded  alike  by  the  highest 
consideration  of  commercial  morality  and  honest 
government."  Had  Webster  been  living  at  this 
time,  he  would  doubtless  have  been  in  accord  with 
the  Greeley  wing  of  the  Republican  party,  for, 
said  he,  "We  have  suffered  more  from  this  cause" 
(referring  to  the  issue  of  paper  money)  "than 
from  every  other  cause  or  calamity.  It  has  killed 
more  men,  pervaded  and  corrupted  the  choicest 
interests  of  our  country  more,  and  done  more 
injustice,  than  even  the  arms  and  artifices  of  our 
enemy."  The  Democratic  platform  of  1872  was 
silent  on  this  subject,  but  four  years  later,  in  the 
famous  platform  upon  which  Samuel  J.  Tilden 
ran  for  the  Presidency,  it  declared,  "Reform  is  ne- 
cessary to  establish  a  sound  currency,  restore  the 
public  credit,  and  to  maintain  the  national  honor. " 
This  was  the  attitude  of  the  leading  parties  during 
the  time  the  famous  Legal  Tender  cases  were  being 
adjudicated  by  the  Supreme  Court. 

At  the  time  the  decision  was  rendered  in  Hep- 
burn v.  Griswold,  two  vacancies  existed  in  the 
Supreme  Court.  The  events  connected  with  these 
appointments  have  furnished  much  cause  for  criti- 


Theory  of  Legal  Tender          157 

cism  of  the  President  and  his  administration  at 
this  time.  The  number  of  Supreme  Court  justices 
was  changed  by  statute  three  times  between  1863 
and  1869.  An  act  of  March  3,  1863,  changed  the 
number  of  justices  of  the  Court  from  nine  to  ten 
members.  By  the  provisions  of  an  act  of  July  23, 
1866,  it  was  enacted  "that  no  vacancy  in  the 
office  of  Associate  Justice  should  be  filled  by  ap- 
pointment until  the  number  of  Associates  should 
be  reduced  to  six,  and  thereafter  the  Supreme 
Court  should  consist  of  a  Chief  Justice  and  six 
Associate  Justices."  By  an  act  of  April  10,  1869, 
the  number  was  again  changed,  this  time  to  a 
Chief  Justice  and  eight  Associate  Justices.  The 
provision  of  this  act  and  the  resignation  of  Justice 
Grier  were  the  causes  of  the  two  vacancies  at 
the  time  of  the  decision  in  Hepburn  v.  Griswold. 
These  various  acts  had  the  effect  of  causing  many 
people  to  believe  that  politics  was  the  controlling 
motive  behind  these  measures,  and  when  Presi- 
dent Grant  appointed  Mr.  Justice  Strong  and  Mr. 
Justice  Bradley  to  the  Supreme  Bench,  both  of 
whom  voted  to  reverse  the  decision  in  Hepburn  v. 
Griswold,  not  only  the  Democrats,  but  many 
Republicans,  openly  censured  the  President,  and 
for  a  time  his  reelection  was  in  serious  doubt. 

With  this  increased  number,  the  same  question 
came  before  the  Court  in  the  cases  of  Knox  v.  Lee 
and  Parker  v.  Davis.1  These  cases  are  notable 
because  of  the  scholarly  briefs  submitted  by 

1  12  Wallace,  287. 


158  Interpretation  of  Political  Theory 

learned  counsel,  the  very  able  opinion  rendered  by 
Justice  Strong,  the  elaborate  and  emphatic  opin- 
ion of  Justice  Bradley,  whom  Senator  Hoar  said 
"the  general  voice  of  the  profession  and  of  his 
brethren  of  the  bench  would  place  at  the  head  of 
all  living  jurists,"  and  the  legal  learning  displayed 
in  the  dissenting  opinions  of  Justices  Chase, 
Clifford,  and  Field.  The  two  controlling  questions 
before  the  Court  were,  "are  the  acts  of  Congress 
known  as  the  Legal  Tender  Acts  constitutional 
when  applied  to  contracts  made  before  their 
passage;  and  secondly,  are  they  valid  as  applicable 
to  debts  contracted  since  their  enactment?" 

In  reversing  the  decision  in  Hepburn  v.  Griswold, 
the  Court  argued  along  the  line  of  expediency, 
and  public  necessity,  and  vaguely  hinted  at  such  a 
power  of  Congress  resulting  from  existing  war 
and  public  danger. 

"It  would  be  difficult  [said  the  Court]  to  over- 
estimate the  consequences  which  must  follow  our 
decision.  They  will  affect  the  entire  business 
of  the  country,  and  take  hold  of  the  possible 
continued  existence  of  the  Government.  If  it  be 
held  by  this  Court  that  Congress  has  no  constitu- 
tional power  under  any  circumstances,  or  in  any 
emergency,  to  make  treasury  notes  a  legal  tender 
for  the  payment  of  all  debts  (a  power  confessedly 
possessed  by  every  independent  sovereignty  other 
than  the  United  States),  the  Government  is  with- 
out the  means  of  self-preservation,  which,  all 
must  admit,  may,  in  certain  contingencies,  become 
indispensable,  even  if  they  were  not  when  the 


Theory  of  Legal  Tender          159 

acts  of  Congress  now  called  into  question  were 
enacted." 

The  Court  here  seems  to  justify  the  Legal  Tender 
Act  as  a  means  of  preserving  the  Union.  This 
line  of  argument  is  followed  by  a  discussion  of 
the  consequences  to  the  commercial  interests,  con- 
tending that  to  annul  the  act  would  make  of  the 
Government  an  instrument  of  injustice. 

"If,  now,  by  our  decision,  it  be  established  that 
these  debts  and  obligations  can  be  discharged  only 
by  gold  coin;  if,  contrary  to  the  expectations  of  all 
parties  to  these  contracts,  legal  tender  notes  are 
rendered  unavailable,  the  Government  has  be- 
come an  instrument  of  the  grossest  injustice;  all 
debtors  loaded  with  an  obligation  it  was  never 
contemplated  they  should  assume,  a  large  percen- 
tage is  added  to  every  debt,  and  such  must  be- 
come the  demand  for  gold  to  satisfy  contracts 
that  ruinous  sacrifices,  general  distress,  and  bank- 
ruptcy may  be  expected.  These  consequences  are 
too  obvious  to  admit  of  question." 

It  can  hardly  be  said  that  up  to  this  point  the 
argument  was  a  strictly  legal  one,  and,  in  fact, 
about  the  only  legal  argument  used  was  expressed 
in  the  following  language : 

"There  is  no  well-defined  distinction  to  be  made 
between  the  constitutional  validity  of  an  act  of 
Congress  declaring  treasury  notes  a  legal  tender 
for  the  payment  of  debts  contracted  after  passage 
and  that  of  an  act  making  them  a  legal  tender  for 
the  discharge  of  all  debts,  as  well  those  incurred 


160  Interpretation  of  Political  Theory 

before  as  those  made  after  its  enactment.  There 
may  be  a  difference  in  the  effects  produced  by  the 
acts,  and  the  hardship  of  their  operation,  but  in 
both  cases  the  fundamental  question,  that  which 
tests  the  validity  of  the  legislation,  is,  can  Con- 
gress constitutionally  give  to  treasury  notes  the 
character  and  quality  of  money?  Can  such  notes 
be  constituted  a  legitimate  circulating  medium, 
having  a  defined  legal  value? 

The  Court  then  proceeds  to  answer  this  question 
upon  the  ground  of  the  implied  powers  in  the  af- 
firmative. The  decision  concludes  with  an  allusion 
to  the  decision  which  it  reversed. 

"We  are  not  aware  of  anything  else  which  has 
been  advanced  in  support  of  the  proposition  that 
the  Legal  Tender  Acts  were  forbidden  by  either 
the  letter  or  spirit  of  the  Constitution.  If,  there- 
fore, they  were,  what  we  have  endeavored  to 
show,  appropriate  means  for  legitimate  ends,  they 
were  not  transgressive  of  the  authority  vested  in 
Congress. 

"But  without  extending  our  remarks  further, 
it  will  be  seen  that  we  hold  the  acts  of  Congress 
constitutional,  as  applied  to  contracts  made  either 
before  or  after  their  passage. " 

It  was  not  until  1884  that  this  question  was 
finally  disposed  of.  This  time  the  case  was  that  of 
Julliard  v.  Greenman. *  The  interest  that  attaches 
to  this  case  is  due  largely  to  the  fact  that  it  was 
the  only  one  of  the  Legal  Tender  cases  that  was 
decided  upon  strictly  legal  reasoning.  The  deci- 

1  no  United  States,  421. 


Theory  of  Legal  Tender          161 

sion  is  of  interest,  also,  because  of  the  fact  that  it 
was  decided  on  much  broader  ground  than  the 
former  decisions,  there  being  no  attempt  made  to 
justify  these  acts  upon  the  grounds  of  national 
self-preservation  or  commercial  necessity.  The 
concluding  paragraphs  illustrate  the  line  of  argu- 
ment used. 


"Congress,  as  the  legislature  of  a  sovereign 
nation,  being  expressly  empowered  by  the  Con- 
stitution to  '  lay  and  collect  taxes,  to  pay  the  debts 
and  provide  for  the  common  defense  and  general 
welfare  of  the  United  States,'  to  'borrow  money 
on  the  credit  of  the  United  States,'  and  'to  coin 
money  and  regulate  the  value  thereof  and  of 
foreign  coin,'  and  being  clearly  authorized,  as 
incidental  to  the  exercise  of  these  great  powers, 
to  emit  bills  of  credit,  to  charter  national  banks, 
and  to  provide  a  national  currency  for  the  whole 
people,  in  the  form  of  coin,  treasury  notes,  and 
national  bank  bills;  and  the  power  to  make  notes 
of  the  Government  a  legal  tender  payment  of 
private  debts  being  one  of  the  powers  belonging 
to  the  sovereignty  in  other  civilized  nations,  and 
not  expressly  withheld  from  Congress  by  the  Con- 
stitution; we  are  irresistibly  impelled  to  the  con- 
clusion that  the  impressing  upon  the  treasury 
notes  of  the  United  States  the  quality  of  being  a 
legal  tender  in  payment  of  private  debts  is  an 
appropriate  means,  conducive  and  plainly  adapted 
to  the  execution  of  the  undoubted  powers  of  Con- 
gress, consistent  with  the  letter  and  the  spirit  of 
the  Constitution,  and  therefore,  within  the  mean- 
ing of  that  instrument,  necessary  and  proper  for 
carrying  into  execution  the  powers  vested  by  this 


162  Interpretation  of  Political  Theory 

Constitution  in  the  Government  of  the  United 
States. 

"Such  being  our  conclusion  in  matter  of  law, 
the  question  whether  at  any  particular  time,  in 
war  or  in  peace,  the  exigency  is  such,  by  reason  of 
unusual  and  pressing  demands  on  the  resources 
of  the  Government,  or  of  the  inadequacy  of  the 
supply  of  gold  and  silver  coin  to  furnish  the  cur- 
rency needed  for  the  use  of  the  Government  and 
of  the  people,  that  it  is,  as  matter  of  fact,  wise  and 
expedient  to  resort  to  this  means,  is  a  political 
question,  to  be  determined  by  Congress,  when  the 
question  to  be  afterward  passed  upon  by  the 
courts.  To  quote  once  more  from  the  judgment 
in  M'Cullough  v.  Maryland:  'Where  the  law  is 
not  prohibited,  and  is  really  calculated  to  effect 
any  one  of  the  objects  intrusted  to  the  Govern- 
ment, to  undertake  here  to  inquire  into  the  degree 
of  its  necessity  would  be  to  pass  the  line  which 
circumscribes  the  judicial  department  and  to 
tread  on  legislative  ground.'1 

"It  follows  that  the  act  of  May  the  3ist,  1878,  c. 
146,  is  constitutional  and  valid ;  and  that  the  circuit 
court  rightly  held  that  in  treasury  notes  reissued 
and  kept  in  circulation,  under  that  act,  tender  of 
lawful  money  in  payment  of  the  defendant's  debt 
was  a  debt  due  to  the  plaintiff. " 

In  spite  of  the  fact  that  this  decision  closely 
followed  the  reasoning  of  Chief  Justice  Marshall 
in  M'Cullough  v.  Maryland,  and  closely  adhered 
to  the  implied  powers  under  those  provisions  of  the 
Constitution  to  which  these  powers  had  been 
applied,  still  the  decision  evoked  much  adverse 

1 4  Wheaton,  423. 


Theory  of  Legal  Tender          163 

criticism.  The  Financial  Chronicle,  in  comment- 
ing on  the  decision,  said:  "All  reliance  upon  the 
constitutional  inhibition  to  do  anything  with  the 
currency  which  Congress  may  have  a  whim  to  do 
must  be  abandoned  henceforth  and  forever. " 

E.  Benjamin  Andrews1  says  in  commenting 
upon  the  Legal  Tender  cases  that, 

"An  enactment  by  Congress  the  Supreme  Court 
presumes  to  be  constitutional  unless  it  is  certainly 
unconstitutional.  If  there  is  doubt  upon  the 
point  there  is  no  doubt.  Congress  is  right.  The 
authority  to  'emit  bills  of  credit'  as  legal  tender 
was  not  expressly  delegated  to  the  Federal  Gov- 
ernment, but  it  may  well  claim  place  in  the  goodly 
families  of  '  implied  powers, '  apparently  being  im- 
plied by  its  prohibitions  upon  the  States,  or  in- 
volved in  the  power  to  borrow  money,  or  in  that 
to  regulate  commerce.  Again,  if  Congress  could 
pass  such  a  law  to  meet  an  exigency,  as  held  in 
Parker  v.  Davis,  Congress  must  be  left  to  deter- 
mine when  the  exigency  exists.  The  intention  of 
the  Fathers  to  inhibit  bills  of  credit  cannot  be 
conclusively  shown.  Even  if  it  were  certain  it 
would  be  inconclusive;  the  question  being  not 
what  they  intended  to  do,  but  what  they  actually 
did  in  framing  the  Constitution. 

"The  wisdom  of  the  legal  tender  law  is  a  differ- 
ent question,  but,  like  the  other,  should  not  be 
pronounced  upon  without  reflection.  It  was  easy 
to  condemn  it  after  the  event." 

At  any  event  it  proved  one  of  the  most  perplexing 

1  See  Hawthorne-Schouler-Andrews,  History  of  United  States, 
vol.  viii.,  p.  225. 


1 64  Interpretation  of  Political  Theory 

problems  that  the  Supreme  Court  was  ever  called 
upon  to  solve.  This  is  evidenced  by  the  fact  that 
from  first  to  last  the  Supreme  Court  decided  the 
question  in  three  different  ways,  a  fact  that  is 
unique  in  the  decisions  of  this  tribunal.  But  in  the 
diversity  of  opinion  that  existed  in  the  Court,  it 
can  be  clearly  seen  that  an  honest  attempt  was 
being  made  to  reconcile  the  commercial  and  po- 
litical interests  of  the  country  with  the  organic 
law  of  the  land. 


CHAPTER  VIII 

THEORY  OF  A  PROTECTIVE  TARIFF 

NO  single  issue  has  persisted  so  long,  or  proved 
of  so  great  historic  consequence  to  our 
country  as  that  of  a  protective  tariff.  It  was  one 
of  the  first  matters  under  debate  in  the  First  Con- 
gress of  the  United  States  in  1789;  it  has  been  a 
persistent  matter  for  consideration  in  many  Con- 
gresses; it  was  the  leading  issue  in  the  political 
campaign  of  1912,  and  the  effects  of  the  recent 
tariff  revision  by  the  Democratic  Congress  and 
the  President's  approval  will  largely  determine 
the  results  of  the  next  presidential  election.  The 
second  act  that  Washington  signed  was  a  tariff 
act.  It  was  signed  on  July  the  fourth,  1789,  and 
it  has,  on  account  of  this  fact,  been  called  by  its 
friends,  "The  Second  Declaration  of  Independ- 
ence." The  act  provided  for  a  tariff  on  rum, 
molasses  (which  was  principally  used  for  rum- 
making),  steel,  coal,  etc.  James  Madison  was 
the  author  of  the  original  measure.  The  first 
decided  opposition  to  the  bill  came  from  South 
Carolina  in  opposing  the  tax  on  tallow  candles. 
The  clashing  of  commercial  interests  brought 
forth  angry  debate.  Both  protection  and  free 

165 


166  Interpretation  of  Political  Theory 

trade  marshaled  their  forces  in  the  First  Congress, 
and  these  forces  have  continued  to  be  arrayed 
against  each  other  through  the  century  and  a 
quarter  of  our  history. 

Madison's x  bill  was  the  result  of  a  memorial  sent 
to  Congress  by  the  merchants  and  manufacturers 
of  Baltimore.  This  address  presented  conditions 
in  the  following  language : 

"Since  the  close  of  the  late  war,  and  the  com- 
pletion of  the  Revolution,  they  have  observed 
with  serious  regrets  the  manufacturing  and  trad- 
ing interests  of  the  country  rapidly  declining,  and 
the  attempts  of  the  State  legislatures  to  remedy 
the  evil  failing  of  their  object;  that,  in  the  present 
melancholy  state  of  our  country,  the  number  of 
poor  increasing  for  want  of  employment,  foreign 
debts  accumulating,  houses  and  lands  depreciat- 
ing in  value,  and  trade  and  manufactures  lan- 
guishing and  expiring,  they  look  up  to  the  Supreme 
Legislature  of  the  United  States  as  the  guardian 
of  the  whole  empire,  and  from  their  united  wisdom 
and  patriotism,  and  ardent  love  of  their  country, 
expect  to  derive  that  aid  and  assistance  which 
alone  can  dissipate  their  just  apprehensions,  and 
animate  them  with  hopes  of  success  in  the  future, 
by  imposing  on  all  foreign  articles,  which  can  be 
made  in  America,  such  duties  as  will  give  a  just 
and  decided  preference  to  their  labors;  discounte- 
nancing that  trade  which  tends  so  materially  to 
injure  them  and  impoverish  their  country;  meas- 

1  Madison  claimed  to  believe  in  the  principle  of  free  trade,  but 
admitted  the  necessity  of  protection  in  time  of  war,  and  for  the 
encouragement  of  infant  industries. — See  his  Works,  vol.  iii.,  p. 
42. 


Theory  of  a  Protective  Tariff      167 

ures  which,  in  their  consequences,  may  also  con- 
tribute to  the  discharge  of  the  national  debt  and 
the  due  support  of  the  Government." 

This  memorial  clearly  lays  the  premise  for  a 
protective  tariff.  Its  defenders  saw  hope  for  the 
languishing  and  expiring  manufactures  in  impos- 
ing duties  on  "all  foreign  articles  which  can  be 
manufactured  in  this  country."  It  is  not  clear 
what  position  Madison  occupied  as  to  protection. 
His  measure  was,  doubtless,  intended  as  a  revenue 
measure  only,  but  he  refused  to  define  his  position 
on  the  subject.  It  developed  that  the  manufac- 
turing states  of  Massachusetts,  New  York,  Penn- 
sylvania, and  Connecticut  seized  upon  the  principle 
of  "protection  for  our  infant  industries"  as  the 
solution  to  their  commercial  difficulties.  As  self- 
interest  fostered  the  doctrine  in  the  manufacturing 
states,  so  the  same  spirit  caused  violent  opposition 
to  it  in  the  non-manufacturing  states.  No  other 
question  in  our  political  history,  except  that  of 
slavery,  has  been  so  completely  influenced  by 
physiographical  conditions. 

The  opponents  of  the  protective  principle  ques- 
tioned the  soundness  of  this  kind  of  legislation  on 
constitutional  grounds,  this  argument  being  the 
basis  of  attack  in  1789  and  1816,  and  more  ear- 
nestly resorted  to  in  the  famous  tariff  debates  of 
1 824.  Not  only  Clay,  the  sponsor  of  the  protective 
system,  but  Adams,  Crawford,  and  Jackson  were 
declared  to  be  advocates  of  this  American  system. r 

1  See  Taussig's  Tariff  History  of  the  United  States,  p.  74. 


i68  Interpretation  of  Political  Theory 

Clay,  in  his  early  Congressional  career  as  a  United 
States  Senator  (1809-1811),  strongly  supported 
the  protective  principle  on  the  ground  of  the 
established  rule  of  loose  construction.  "The 
nation,"  he  says,  "which  imports  its  clothing 
from  abroad  is  but  little  less  dependent  than  if  it 
imported  its  bread."  This  statement  seems  to 
seek  to  justify  the  principle  on  the  ground  of 
expediency.  He  argued  along  the  same  line  in 
the  debate  on  the  tariff  of  1824.  But  his  debates 
on  this  subject  evidently  regard  the  principle  as 
authorized  under  the  provision  of  the  Constitution 
that  gives  Congress  power  to  lay  taxes,  duties, 
imposts,  and  excises.  Pomeroy  says T  on  this  point : 

"The  partisans  of  a  strict  construction  have 
urged  that  the  levying  of  duties  must  be  confined 
to  so  much  as  may  be  necessary  for  a  tax.  But 
during  a  large  portion  of  our  history  a  tariff  has 
been  in  operation  which  was  designed,  and  did 
operate,  to  protect  certain  home  interests.  A 
protective  tariff  is  certainly  not  indispensable  to 
the  execution  of  the  power  to  levy  taxes;  but  it  is 
as  certainly  one  of  the  methods  of  exercising  that 
power." 

A  compromise  view  seems  to  have  been  held  by 
some.  They  were  what  has  been  called  "moderate 
protectionists,"  of  whom  Webster  was  the  leader 
during  the  early  tariff  period.  He  held  that  the 
whole  subject  was  one  of  expediency;  that  the 

1  Constitutional  Law  (Bennett's  Edition),  p.  217. 


Theory  of  a  Protective  Tariff      169 

protective  system  should  be  so  restricted  as  not 
to  destroy  commerce. J 

The  tariff  of  1828,  otherwise  known  as  the  "  tariff 
of  abominations,"  brought  out  definite  sectional 
strife.  The  National  Republicans,  relying  on  the 
doctrine  of  loose  construction  and  armed  with  the 
lucid  report  of  Alexander  Hamilton,  which  was 
made  to  Congress  in  1791,  were  able  to  carry 
into  law  this  famous  act,  against  the  united 
opposition  of  the  strict  construction  followers  of 
Jefferson. 

Scarcely  had  the  act  become  law  when  the 
tariff  debate  went  beyond  the  halls  of  Congress 
to  all  parts  of  the  country.  Five  Southern  states 
(North  Carolina,  South  Carolina,  Virginia,  Georgia, 
and  Alabama)  protested  against  the  act  on  the 
ground  that  it  was  destructive  to  the  interests  of 
the  people  of  these  states.  The  South,  as  well  as 
some  other  sections  of  the  country,  saw  in  this 
tariff  measure  Congressional  support  of  the  com- 
mercial interests  of  the  North,  at  the  expense  of 
the  South.  This  view  of  the  matter  precipitated 
Nullification. 

South  Carolina  became  the  storm-center  of  the 
opposition.  The  agitation  formally  began  in  1821 
when  McDuffie  in  a  pamphlet  opposed  the  doc- 
trine of  State  Sovereignty.  The  question  that  pre- 
sented itself  was :  Who  is  the  judge  of  the  powers 
of  the  Federal  Government?  Webster  replied, 
"the  Nation";  Calhoun  answered  that  the  "state 

'See  Webster's  speech  in  Congress  on  April  i  and  2,  1828. 


170  Interpretation  of  Political  Theory 

is  judge  on  all  matters  pertaining  to  itself. " x  This 
discussion  led  to  the  publication  of  Turnbull's 
pamphlet,  The  Crisis,  which  contained  the  first 
formulated  doctrine  of  Nullification.  This  pam- 
phlet was  heartily  indorsed  by  Cooper,  Calhoun, 
and  Hayne.  When  the  Legislature  of  South  Caro- 
lina met  in  December,  1825,  the  House  adopted 
the  following  resolution:  "It  is  an  unconstitu- 
tional exercise  of  power  on  the  part  of  Congress 
to  lay  duties  to  protect  domestic  manufactures." 
Resolutions  supporting  the  views  of  South  Caro- 
lina were  passed  by  North  Carolina,  Alabama,  and 
Georgia.  To  make  the  situation  more  acute, 
several  Northern  states,  principally  New  York, 
Pennsylvania,  Ohio,  and  Massachusetts,  not  only 
defended  the  tariff  laws,  but  urged  an  increase  of 
the  import  duties.  In  addition  to  this,  late  in  1831 
a  Free  Trade  Convention  was  held  in  Philadel- 
phia and  a  Protective  Convention  in  New  York 
City. 

In  July,  1832,  Congress  revised  the  tariff  of 
1828,  but  left  it  decidedly  protective.  Immedi- 
ately the  members  of  Congress  from  South  Carolina 
notified  their  people  at  home  that  "protection  had 
become  the  settled  policy  of  the  Nation  and  all 
hope  for  relief  had  irrevocably  passed."  In  No- 
vember, 1832,  in  convention  assembled  at  Colum- 
bia, South  Carolina  formally  adopted  the  famous 
Ordinance  of  Nullification.  The  protective  doc- 

1  See  on  this  point  Fess'  History  of  Political  Theory  and  Party 
Organization  in  the  United  States,  pp.  154  and  155. 


Theory  of  a  Protective  Tariff      171 

trine  had,  after  forty  years  of  agitation,  wrought 
its  deadly  work. 

On  December  12,  1831,  six  months  preceding 
the  tariff  revision  of  1832,  the  Whigs  or  National- 
Republicans  in  their  first  formal  platform  an- 
nounced the  doctrine,  to  which  their  successor, 
the  Republican  party  of  to-day,  has  adhered,  that 
"an  adequate  protection  to  American  industry  is 
indispensable  to  the  prosperity  of  the  country; 
and  an  abandonment  of  the  policy  at  this  period 
would  be  attended  with  consequences  ruinous 
to  the  best  interests  of  the  Nation."  Clay  was 
nominated  on  this  platform  in  recognition  of  his 
loyalty  and  prominence  as  an  advocate  of  the 
protective  theory.  For  the  first  time,  the  Demo- 
cratic party  also  held  a  national  convention  and 
renominated  Jackson.  This  campaign  turned  to 
the  bank  as  an  issue,  rather  than  to  that  of  the 
tariff,  for  the  Compromise  Tariff  Act  was  passed 
in  1833,  which  remained  in  force  for  nine  years. 
There  is  little  doubt  that  this  act  was  the  result 
of  an  agreement  between  Clay,  the  representative 
of  the  protectionists,  and  Calhoun,  the  leader  of  the 
advocates  of  free  trade.  The  effect  of  this  measure 
was  to  postpone  the  tariff  as  an  issue  for  a  time. 

In  1863,  the  Democrats  of  New  York  adopted 
a  declaration  which  was  regarded  as  the  sentiment 
of  the  party  throughout  the  country,  although  the 
party  in  convention  did  not  formally  adopt  a 
platform.  The  language  used  in  the  New  York 
declaration  was  as  follows:  "We  declare  un- 


172  Interpretation  of  Political  Theory 

qualified  hostility  to  any  and  all  monopolies  by 
legislation  because  they  are  violations  of  equal 
rights  of  the  people;  hostility  to  the  dangerous 
and  unconstitutional  creation  of  vested  rights  and 
prerogatives  by  legislation,  because  they  are  usur- 
pations of  the  people's  sovereignty. "  In  substance 
this  general  sentiment  was  expressed  in  a  number 
of  the  Democratic  platforms  that  followed.  The 
first  strong  and  positive  declaration  of  the  party 
against  the  theory  of  protection  was  announced 
in  the  platform  of  1876,  in  the  convention  which 
nominated  Tilden.  It  said: 

"We  denounce  the  present  tariff,  levied  upon 
nearly  4000  articles,  as  a  masterpiece  of  injustice, 
inequality,  and  false  pretense.  It  yields  a  dwind- 
ling, not  a  yearly  rising  revenue.  It  has  impover- 
ished many  industries  to  subsidize  a  few.  It 
prohibits  imports  that  might  purchase  the  pro- 
ducts of  American  labor.  It  has  degraded  Ameri- 
can commerce  from  the  first  to  an  inferior  rank 
on  the  high  seas.  It  has  cut  down  the  sales  of 
American  manufactures  at  home  and  abroad,  and 
depleted  the  returns  of  American  agriculture — an 
industry  followed  by  half  of  our  people. " 

Four  years  later  the  party  came  out  "for  a  tariff 
for  revenue  only. "  In  opposition  to  this  teaching 
of  the  Democratic  party  the  modern  Republican 
party  has  taken  firmer  ground  in  recent  years  for 
the  principle  of  protection.  For  instance,  their 
platform  of  1888  denounced  the  Mills  Bill  in  the 
following  language: 


Theory  of  a  Protective  Tariff      1 73 

"We  are  uncompromisingly  in  favor  of  the 
American  system  of  protection ;  we  protest  against 
its  destruction  as  proposed  by  the  President  and 
his  party.  They  serve  the  interest  of  Europe;  we 
will  support  the  interest  of  America.  We  accept 
the  issue  and  confidently  appeal  to  the  people  for 
their  judgment.  The  protective  system  must  be 
maintained.  Its  abandonment  has  always  been 
followed  by  general  disaster  to  all  interests,  ex- 
cept those  of  the  usurer  and  the  sheriff.  We  de- 
nounce the  Mills  Bill  as  destructive  to  the  general 
business,  the  labor,  and  the  farming  interest  of  the 
country." 

This  view  is  in  harmony  with  the  views  held  by 
the  Whigs  of  1842,  who  were  responsible  for  the 
tariff  of  that  year.  The  Democratic  party  through- 
out its  history  has  opposed  the  principle  of  protec- 
tion, while  the  various  parties  which  have  opposed 
it  have  taken  the  side  of  protection.  Each  of  the 
leading  parties  in  recent  years  has  placed  a  tariff 
plank  in  its  platform.  It  has  been  one  question 
that  arose  with  the  first  breath  of  our  nationality 
and  has  persisted  throughout  our  history,  in- 
creasing in  importance  as  the  years  come  and  go. 
It  is  a  more  dominant  issue  to-day  than  at  any 
earlier  period  of  our  history.  The  present  attitude 
of  the  two  dominant  parties  may  fairly  be  inferred 
from  the  platforms  of  1904.  In  that  year  the 
Democratic  platform  had  this  declaration:  "We 
favor  a  tariff  limited  to  the  needs  of  the  Govern- 
ment economically  administered,  and  so  levied 
as  not  to  discriminate  against  any  industry,  class, 


174  Interpretation  of  Political  Theory 

or  section,  to  the  end  that  the  burdens  of  taxation 
shall  be  distributed  as  equally  as  possible."  The 
Republican  party  of  that  year,  in  their  platform, 
declared  that  "protection  which  guards  and  de- 
velops our  industries  is  a  cardinal  policy  of  the 
Republican  party.  The  measure  of  protection 
should  always  at  least  equal  the  difference  in  the 
cost  of  production  at  home  and  abroad." 

The  Democratic  and  Republican  platforms  of 
1908  and  1912  reaffirm  in  substance  these  same 
ideas.  The  Progressive  (Republican)  platform  of 
1912  declared  for  protection  "which  shall  equalize 
conditions  of  competition  between  the  United 
States  and  foreign  countries,  both  for  the  farmer 
and  manufacturer,  and  which  shall  maintain  for 
labor  an  adequate  standard  of  living."  This 
seems  to  represent  a  position  midway  between 
the  uncompromising  protective  policy  of  the  Re- 
publicans and  the  "tariff  for  revenue  policy"  of 
the  Democrats.  These  are  the  prevailing  view- 
points on  the  tariff  question  to-day. 

Having  briefly  traced  party  attitude  on  the 
question,  we  turn  to  consider  to  what  extent 
judicial  opinion  has  favored  one  or  the  other  of 
the  views  upon  the  question.  Those  who  opposed 
the  doctrine  claimed  that  it  was  unconstitutional 
on  two  propositions:  (i)  That  it  was  not  a  neces- 
sary means  of  laying  and  collecting  taxes,  and 
that  such  a  tax  was  not  contemplated  by  the 
framers  of  the  Constitution.  In  other  words  they 
based  their  claim  upon  the  doctrine  of  strict 


Theory  of  a  Protective  Tariff      175 

construction.  This  view  was,  as  has  been  shown, 
very  early  overthrown  by  the  courts  in  establish- 
ing the  doctrine  of  loose  construction.  (2)  That 
a  protective  tariff  was  unconstitutional  because, 
on  account  of  the  diversity  of  climate  and  the 
occupations  of  the  people,  it  must  operate  to 
benefit  one  section  of  the  country  at  the  expense 
of  another.  Strange  as  it  may  seem,  although  the 
tariff  had  the  effect  to  involve  great  commercial 
interests,  this  question  was  never  directly  involved 
in  a  suit  at  law  or  in  equity.  A  number  of  deci- 
sions, however,  have  grown  out  of  the  issues,  from 
which  we  can  infer  the  judicial  mind  on  the 
subject. 

The  earliest  case  touching  upon  the  subject  was 
that  of  Hylton  v.  the  United  States. l  This  was  a 
case  in  which  an  action  of  debt  had  been  instituted 
in  the  name  of  the  United  States  against  Daniel 
Hylton,  to  recover  the  penalty  imposed  by  an  act 
of  Congress  of  the  5th  day  of  June,  1794,  for  not 
entering  and  paying  the  duty  on  a  number  of 
carriages.  Issue  was  joined  on  the  ground  that 
the  tax  was  a  direct  tax  and,  therefore,  unconstitu- 
tional. The  Government  was  represented  by 
Alexander  Hamilton,  Secretary  of  the  Treasury, 
and  Attorney-General  Lee,  who  ably  contended 
for  the  constitutionality  of  the  law.  The  Court 
upheld  the  law,  contending  that  it  was  not  a 
direct  tax,  but  merely  a  duty.  The  legal  right 
to  levy  a  duty  was  announced  in  these  words: 

X3  Dallas,  171. 


176  Interpretation  of  Political  Theory 

"Duties,  imposts,  and  excises,"  said  the  Court 
(Justice  Chase  delivered  this  opinion),  "were 
enumerated,  after  the  general  term,  taxes,  for  the 
purpose  of  declaring  that  they  were  to  be  laid  by 
the  rule  of  uniformity.  I  consider  the  Constitution 
to  stand  in  this  manner.  A  general  power  is  given 
to  Congress  to  lay  and  collect  taxes  of  every  kind 
or  nature,  without  any  restraint,  except  only  on 
exports,  but  two  rules  are  prescribed  for  the 
Government,  namely,  uniformity  and  apportion- 
ment. Three  kinds  of  taxes,  to  wit:  duties,  im- 
posts, and  excises  of  the  first  rule,  and  capitation, 
or  other  direct  taxes,  by  the  second  rule." 

Justice  Iredell,  in  concurring  with  this  opinion 
of  the  Chief  Justice,  said :  "  Congress  possesses  the 
power  of  taxing  all  taxable  objects,  without  limita- 
tion, with  the  particular  exception  of  a  duty  on 
exports."  This  decision  was  rendered  within  one 
year  of  the  time  the  tariff  law  on  which  it  was 
based  became  effective.  This  decision  has  not 
been  disturbed.  It  shows  the  early  desire  of  the 
Court  to  uphold  the  revenue  system  of  the  coun- 
try. It  had  the  effect  of  making  possible  the  en- 
forcement of  the  various  excise  laws  through  which 
enormous  revenues  have  been  collected  by  the 
Government.  This  decision  shows  the  truth  of 
Cooley's  statement  that  "the  power  to  impose 
taxes  is  one  so  unlimited  in  force  and  so  searching 
in  extent,  that  the  courts  scarcely  venture  to 
declare  that  it  is  subject  to  any  restrictions  what- 
ever, except  such  as  rest  in  the  discretion  of  the 
authority  which  exercises  it."1 

1  Cooley's  Constitutional  Limitations,  p.  587. 


Theory  of  a  Protective  Tariff      177 

A  decision  somewhat  more  in  point  was  that  of 
the  brig  Aurora.1  This  decision  was  handed  down 
on  February  26,  1813.  An  appeal  had  been  taken 
from  the  judgment  of  the  District  Court  for  the 
District  of  Orleans,  which  condemned  the  cargo 
of  the  brig  Aurora  for  having  been  imported  from 
Great  Britain  in  violation  of  the  fourth  and  fifth 
sections  of  the  Non-Intercourse  Act  of  March  I, 
1809.  This  act  was  a  modification  of  the  Embargo 
Act,  which  was  repealed  three  days  before  Jefferson 
retired  from  the  presidency.  The  Non-Intercourse 
Act  allowed  our  merchantmen  to  go  abroad,  but 
forbade  them  to  trade  with  either  Great  Britain 
or  France.  Section  IV.  of  this  act  provided  that 
"after  the  2oth  day  of  May  next,  it  shall  not 
be  lawful  to  import  into  the  United  States  or 
the  territories  goods,  etc.,  from  England,"  and  the 
fifth  section  made  forfeiture  the  penalty.  The 
Embargo  Act  and  this  partial  Embargo  Act  were 
the  doctrine  of  protection  carried  to  its  logical 
conclusion.  If  Congress  could  put  a  protective 
tariff  on  goods  to  protect  our  infant  industries,  it 
could  prohibit  the  importation  of  foreign  goods 
from  all  countries  or  from  any  country  in  the 
interest  of  home  manufacturers.  The  Embargo 
Act  of  1807  never  came  before  the  courts,  but  the 
Legislature  of  Massachusetts  declared  it  "unconsti- 
tutional and  not  legally  binding."2  This  belief 

1  7  Cranch,  380. 

*  Adams's  United  States  History,  vol.  iv.f  McMaster's  U.  S., 
vol.  iii. 


178  Interpretation  of  Political  Theory 

on  the  part  of  New  England  produced  the  Hartford 
Convention.1  Many  believed  that  if  Congress 
could  pass  an  Embargo,  it  could  also  pass  a  pro- 
tective tariff  that  was  so  high  as  to  prevent  the 
importation  of  goods  from  a  foreign  country  and 
give  to  American  manufacturing  interest  a  mo- 
nopoly by  law ;  but  when  the  Non-Intercourse  Act 
came  to  be  passed  on  in  the  brig  Aurora  case,  the 
Court  seemed  not  to  have  questioned  the  power  of 
Congress  to  enact  the  law.  Justice  Johnson  de- 
livered the  opinion  of  the  Court  and  sustained  the 
law  and  the  right  of  Congress  to  enforce  it  after  its 
conditional  expiration,  either  expressly  or  con- 
ditionally as  their  judgment  should  direct. 

A  little  later  the  same  sections  of  this  act  were 
sustained  in  an  opinion  rendered  by  Chief  Justice 
Marshall  in  the  case  of  the  schooner  Hoppett.2 
The  unsettled  conditions  that  existed  between  the 
United  States,  England,  and  France  brought  the 
acts  referred  to  into  existence,  and  this  may  account 
for  the  fact  that  the  courts  never  questioned  the 
power  that  created  them.  Certainly  no  power  was 
given  to  Congress  in  time  of  peace  to  enact  a  law 
that  would  destroy  the  commerce  and  prosperity  of 
any  section  of  the  country.  The  acceptance  of  the 
right  of  Congress  to  enact  these  laws  really  settled 
the  policy  of  the  country.  Many  later  decisions 
bear  interesting  testimony  of  the  attitude  of  the 
courts  upon  the  subject. 

1  Walker's  Making  of  the  Nation,  p.  200. 
*  Schooner  Hoppett  v.  U.  S.,  7  Cranch,  386. 


Theory  of  a  Protective  Tariff      179 

In  1885,  the  Supreme  Court  in  an  opinion  de- 
livered by  Justice  Matthews  said: 

"The  whole  system"  (referring  to  the  tariff 
system),  "must  be  regarded  in  each  alteration, 
and  no  disturbance  allowed  of  existing  legislative 
rules  of  general  application  beyond  the  clear  inten- 
tion of  Congress.  In  the  interpretation  of  our 
revenue  laws,  this  Court  has  not  been  disposed  to 
apply  with  strictness  the  rule  which  repeals  a 
prior  statute  by  implication,  where  a  subsequent 
one  has  made  provision  upon  the  same  subject, 
and  differing  in  some  respects  from  the  former, 
but  has  been  inclined  to  uphold  both,  unless  the 
repugnance  is  so  clear  and  positive  as  to  leave 
no  doubt  as  to  the  intent  of  Congress. " x 

This  case  shows  by  implication  the  effort  the 
Court  would  make  to  sustain  a  tariff  law. 

An  attack  was  made  on  the  constitutionality  of 
the  Tariff  Act  of  1890,  in  the  case  of  Marshall 
Field  and  Company  v.  Clark.2  It  was  claimed 
that  an  attempt  was  made  in  this  Act  to  delegate 
certain  powers  to  the  President  that  were  legis- 
lative in  their  nature,  rather  than  executive. 
While  this  point  is  immaterial  to  this  discussion, 
the  Court  used  this  language,  which  is  in  point: 

"Unless  it  be  impossible,"  said  Justice  Harlan, 
"to  avoid  it,  a  general  revenue  statute  should 
never  be  declared  inoperative  in  all  its  parts 
because  a  particular  part  relating  to  a  distinct 

1  Saxonville  Mills  i\  Russell.  »  143  U.  S.,  649. 


i8o  Interpretation  of  Political  Theory 

subject  may  be  invalid.  A  different  rule  might  be 
disastrous  to  the  financial  operations  of  the  Gov- 
ernment, and  produce  the  utmost  confusion  in  the 
business  of  the  country." 

Chief  Justice  Fuller  thought  the  particular  sec- 
tion unconstitutional  but  agreed  with  the  majority 
of  the  Court  in  the  conclusions  reached.  He  said: 
"Whilst,  however,  we  cannot  agree  to  the  proposi- 
tion that  the  particular  section  is  valid  and  con- 
stitutional, we  do  not  regard  it  as  such  an  essential 
part  of  the  Tariff  Act  as  to  invalidate  all  the  other 
sections."  The  Court,  however,  in  this  decision 
did  not  fail  to  reveal  the  fact  that  they  were  of  the 
opinion  that  that  provision  of  the  McKinley  tariff 
that  placed  a  bounty  on  sugar  was  unconstitu- 
tional. "A  tax  laid  for  neither  the  object  of  pay- 
ing the  debts  nor  providing  for  the  common 
defense  nor  general  welfare  of  the  United  States  is 
unconstitutional  as  an  excess  of  legislative  power. " 
It  seems  to  have  been  the  studious  intention  of  the 
Federal  courts  to  associate  tariff  with  a  tax. 
Bascom1  accounts  for  the  courts  sustaining  the 
tariff  laws  throughout  our  history  on  these  grounds : 
"The  protective  policy  of  the  United  States  was 
instituted  so  early,  grew  by  such  insensible  de- 
grees, and  was  so  closely  associated  with  taxation, 
that  the  question  of  its  constitutional  right  was 
blurred." 

This  idea  was  a  prominent  feature  of  the  Head 

1  Growth  of  Nationality  in  the  United  States,  p.  35. 


Theory  of  a  Protective  Tariff      181 

Money  cases.     In  Arnold  v.  United  States1  the 
Court  says, 

"The  idea  that  runs  from  the  very  first  Congress 
down  to  the  present  date,  in  laying  duties,  im- 
posts, and  excises,  the  rule  of  inherent  uniformity, 
or  in  other  words,  intrinsically  equal  and  uniform 
taxes,  has  been  disregarded,  and  the  principle  of 
geographical  uniformity  consistently  enforced." 

There  have  been  a  few  exceptions,  however,  to 
the  attempt  of  the  courts  to  identify  a  tariff  with  a 
tax.  For  instance,  in  Arnold  v.  United  States2  the 
Court  says,  "The  idea  that  runs  through  the 
Tariff  Act  of  1890  is  that  of  protection  to  our 
manufactures."  A  tariff  could  hardly  be  justified 
on  broader  grounds  than  this. 

The  tariff  principle  has  been  held  to  apply  to  our 
recent  Spanish  acquisitions.  The  Island  of  Porto 
Rico,  after  its  cession  to  the  United  States  by  the 
treaty  with  Spain,  which  was  proclaimed  at  Wash- 
ington on  April  n,  1899,  though  it  had  not  been 
formerly  embraced  by  Congress  within  the  cus- 
toms' unions  of  the  states,  was  no  longer  foreign 
territory  within  the  meaning  of  the  Dingley  Tariff 
Act  of  July  24,  1 897. 3  A  similar  decision  was  made 
in  the  Diamong  Ring  case  with  reference  to  the 
Philippine  Islands. 

In  conclusion  we  can  hardly  explain  the  causes 

1 112  U.  S.,  580.  *  147  u.  S.f  494. 

JDe  Lima  v.  Bidwell,  182  U.  S.  I. 


1 82  Interpretation  of  Political  Theory 

and  status  of  the  tariff  question  better  than  in  the 
words  of  John  Bascom,1  who  says: 

"A  written  constitution  has  this  distinct  evil — 
that  it  gives  occasion  to  technical  discussions  as 
to  whether  a  given  power  is  contained  in  the 
original  grant,  and  these  discussions  obscure  the 
more  important  question  whether  the  given  power, 
if  present,  can  be  advantageously  exercised.  The 
formal  inquiry  crowds  out  the  substantial  one  of 
the  wisdom  of  the  proposed  policy.  This  has  been 
illustrated  in  discussions  of  the  doctrine  of  protec- 
tion. An  effort  was  early  made  to  disprove  the 
right  of  Congress  to  impose  protective  duties.  The 
power  conceded  to  Congress  to  lay  taxes  is  so 
broad,  and  the  power  to  lay  discriminating  duties 
has  been  so  wrapped  up  in  this  power,  that  the 
effort  to  prove  its  unconstitutionality  has  failed 
and  has  been  abandoned,  with  the  exception  of 
here  and  there  a  doctrinaire.  The  question 
whether  Congress  might  wisely  impose  protective 
duties  has  received  less  thorough  consideration 
because  of  the  victory  gained  as  to  the  power  to 
impose  them.  It  is  a  familiar  weakness  in  human 
affairs  that  the  power  to  do  a  given  thing  operates 
as  a  motive  to  do  it.  Again  and  again  in  our  his- 
tory the  familiar  right  and  necessity  of  taxation 
have  hidden  from  sight  some  vital  policy  not 
necessarily  associated  with  them. " 

With  the  recent  support  given  the  doctrine  of 
protection  by  the  courts,  the  dominant  parties 
have  both  assumed  an  advanced  position  on  the 
subject.  Before  the  tariff  period  from  1887  to 

1  Growth  of  Nationality  in  the  United  States,  p.  34. 


Theory  of  a  Protective  Tariff      183 

1900,  which  saw  the  debate  and  the  enactment  of 
the  McKinley  Tariff  Act,  the  Republican  party 
advocated  a  protective  tariff  as  a  temporary  policy. 
As  President  Garfield  said:  "They  were  for  a 
protective  tariff  that  leads  ultimately  to  free 
trade. "  This  view  has  been  abandoned  by  the 
Republicans  and  they  have  substituted  for  it  a 
permanent  policy  of  protection.  On  the  other 
hand,  the  Democrats  have  moved  up  from  a 
policy  of  opposition  to  all  forms  of  protection  to 
that  of  a  moderate  duty  or  protection  to  supply 
the  necessary  revenue  to  support  the  Government. 
The  two  leading  parties  are  likely  to  disagree  in 
the  future  more  in  working  out  the  details  of  the 
system  than  in  any  difference  as  to  policy  or 
principle. 


CHAPTER  IX 

THEORY  OF  AN  INCOME  TAX 

THE  suggestion  of  an  income  tax  is  the  result 
of  an  attempt  to  put  into  effect  a  low  tariff 
without  producing  a  deficit  in  the  national  treas- 
ury for  the  necessary  expenses  of  the  Federal 
Government.  It  is,  therefore,  closely  related  to 
the  tariff  as  an  issue,  and  has  had  the  support  of 
that  party  which  has  favored  a  low  tariff  and 
opposed  all  forms  of  protection  by  governmental 
agency.  The  income  tax  of  1894  was  incorporated 
into  the  Wilson  Tariff  Act,  which  was  a  Demo- 
cratic measure,  and  greatly  reduced  the  existing 
tariff  schedules.  The  Democratic  platform  of 
1892  was  silent  upon  the  subject  of  an  income  tax, 
but  the  party  had  promised  to  revise  the  tariff 
downward,  and  asserted  that  "the  Federal  Gov- 
ernment has  no  constitutional  power  to  impose 
and  collect  tariff  duties,  except  for  the  purposes 
of  revenue  only,"  and  denounced  the  McKinley 
tariff  as  class  legislation.  The  Republicans  did 
not  mention  an  income  tax  in  their  platform,  but 
strongly  defended  the  doctrine  of  protection.  How- 
ever, the  National  People's  party  of  that  year  did 
declare  in  favor  of  a  graduated  income  tax.  This 

184 


Theory  of  an  Income  Tax         185 

was  the  only  sense  in  which  it  became  an  issue  in 
the  campaign  of  1892.  But  this  was  sufficient  to 
call  the  attention  of  the  country  to  it,  and  when 
the  Democrats  in  Congress  gave  it  their  support, 
it  was  violently  opposed  by  the  Republicans. 

Though  Cleveland  was  elected  with  the  reduction 
of  the  tariff  as  the  chief  issue,  when  he  was  in- 
augurated on  March  4,  1893,  conditions  were  such 
as  to  make  it  difficult  for  the  party  in  power  to 
conform  to  its  platform  assertions.  At  that  time 
the  country  was  on  the  verge  of  a  panic.  The 
treasury  was  in  a  financial  strait.  The  gold  supply 
was  so  reduced  that  there  was  fear  that  the  holders 
of  paper  money  would  make  a  run  on  the  treasury. 
The  panic  was  only  averted  by  the  support  of  the 
banks  and  the  refusal  of  the  Government  to  pur- 
chase more  silver.  In  the  face  of  this  the  expenses 
of  the  Government  had  greatly  increased,  and  in 
spite  of  this  fact  the  Democrats  were  committed 
to  a  policy  of  tariff  reduction.  The  party  sought 
the  solution  of  this  difficult  situation  in  the  passage 
of  an  income  tax  of  two  per  cent,  on  all  incomes  in 
excess  of  four  thousand  dollars. 

The  constitutionality  of  an  income  tax  seems 
not  to  have  been  seriously  questioned  when  the 
law  of  1890  was  under  consideration  by  Congress. 
An  income  tax  had  been  repeatedly  imposed  and 
had  been  recognized  in  judicial  action.  Five 
acts  involving  this  principle  had  been  passed  by 
Congress  before  1860.  In  the  special  session  of 
Congress  which  convened  on  July  4,  1861,  a  tax 


1 86  Interpretation  of  Political  Theory 

on  incomes  was  passed  to  assist  in  defraying  the 
expenses  due  to  the  war.  Between  1861  and  1870 
nine  acts  were  passed  involving  the  income  tax 
principle. T 

The  question  of  the  constitutionality  of  this 
kind  of  tax  grew  out  of  the  sense  in  which  "direct 
taxes"  was  used  in  the  Constitution.  The  Consti- 
tution bestows  unlimited  power  of  taxation  on 
the  National  Government,  with  one  exception  and 
two  restrictions.  The  exception  is  that  of  a  tax 
on  exports,  and  the  restrictions  are  (i)  uniformity 
and  (2)  apportionment. 

Our  courts  have,  throughout  the  history  of  the 
country,  restricted  the  meaning  of  "direct  taxes" 
as  used  in  our  Constitution.  In  this  tendency,  as 
in  many  others,  we  have  been  largely  influenced  by 
England.  Mill2  says: 

"In  England  there  is  a  popular  feeling  of  old 
standing,  in  favor  of  indirect,  or  it  should  be  rather 
said  in  opposition  to  direct,  taxation.  The  un- 
popularity of  direct  taxation,  contrasted  with  the 
easy  manner  in  which  the  public  consent  to  let 
themselves  be  fleeced  in  the  prices  of  commodities, 
has  generated  in  many  friends  of  improvement  a 
directly  opposite  mode  of  thinking  to  the  fore- 
going. They  contend  that  the  very  reason  which 
makes  direct  taxation  disagreeable,  makes  it  pref- 
erable. Under  it,  every  one  knows  how  much  he 
really  pays ;  and  if  he  votes  for  a  war,  or  any  other 
expensive  national  luxury,  he  does  so  with  his 

1  See  Dewey's  Financial  History  of  the  United  States,  pp.  n, 
277,  and  305.  2  Political  Economy,  vol.  ii.,  p.  367. 


Theory  of  an  Income  Tax         187 

eyes  open  to  what  it  costs  him.  If  all  taxes  were 
direct,  taxes  would  be  much  more  perceived  than 
at  present;  and  there  would  be  a  security  which 
now  there  is  not,  for  economy  in  the  public 
expenditure." 

We  have  experienced  exactly  a  similar  condition 
in  this  country.  Our  legal  authorities  have  been 
disposed  to  uphold  the  principle  of  indirect  taxa- 
tion, while  at  the  same  time  the  people  have  been 
drifting  toward  a  more  extended  use  and  meaning 
of  direct  taxation,  and  for  the  same  reasons  referred 
to  by  Mill. 

The  tendency  of  the  courts  was  illustrated  in 
the  early  case  of  Hylton  v.  United  States.  This 
case  grew  out  of  the  refusal  to  pay  a  tax  which 
was  assessed  on  pleasure  carriages.  The  payment 
of  the  tax  was  refused,  and  the  fact  relied  on  in 
the  argument  of  the  case  was  that  the  tax  was 
direct  in  its  nature  and  not  laid  as  required  by  the 
Constitution.  But  the  Supreme  Court  refused  to 
class  this  tax  as  direct,  and  held  that  it  was  in  the 
form  of  a  duty.  This  decision  was  rendered  in 
1795,  and  it  is  significant  that  three  of  the  judges 
that  rendered  the  majority  opinion  were  members 
of  the  Constitutional  Convention. 

In  the  case  of  Insurance  v.  Soule1  the  question 
was  raised  as  to  the  legality  of  a  tax  on  the  receipts 
from  premiums  and  assessments.  In  a  unanimous 
opinion  the  Court  held  this  not  to  be  a  direct  tax. 
Chief  Justice  Chase  reached  a  similar  conclusion 

1  7  Wallace,  433. 


1 88  Interpretation  of  Political  Theory 

in  rendering  the  opinion  in  the  case  of  Bank  v. 
Fenno. * 

But  the  most  important  decision  on  this  subject, 
rendered  before  the  passage  of  the  Act  of  1894, 
was  that  of  Springer  v.  United  States2  which  was 
rendered  in  January,  1881.  This  was  an  action 
of  ejectment  brought  by  the  defendant  in  error  to 
prevent  the  sale  of  certain  lots  by  the  collector  of 
taxes  in  payment  of  an  income  tax  as  provided  by 
an  act  of  Congress  passed  in  1862.  Justice  Swain 
delivered  the  opinion  of  the  Court,  and  held  that 
the  tax  was  not  a  direct  tax  and  therefore  a  legal 
tax.  He  cites  a  number  of  authorities  to  show 
that  direct  taxes  under  the  Constitution  are  re- 
stricted to  capitation  taxes  and  taxes  on  real  estate, 
and  that  this  income  tax  was  in  the  nature  of  an 
excise  duty.  The  Court  says  (in  answer  to 
numerous  questions  and  citations  raised  and 
quoted  in  the  brief  of  the  plaintiff  in  error)  that 
"what  is  a  direct  tax,  is  one  exclusive  in  American 
jurisprudence. "  The  Court,  in  refusing  to  accept 
the  definition  of  direct  taxation  as  used  by  Mill 
in  his  Political  Economy  and  Smith  in  The  Wealth 
of  Nations,  say  that  all  text  writers  in  this  country 
are  in  entire  accord  in  limiting  the  meaning  of 
direct  taxes  to  a  poll  and  a  land  tax. 

This  was  the  status  of  the  income  tax  doctrine 
at  the  time  of  the  passage  of  the  income  tax  law 
of  1894.  Under  the  dignified  doctrine  of  stare 
decisis  no  question  seemed  more  completely  settled. 

1 8  Wallace,  533.  a  102  U.  S.,  586. 


Theory  of  an  Income  Tax         189 

Certainly  judicial  opinion  justified  the  belief  of 
the  people  generally,  as  well  as  many  learned 
lawyers,  that  the  law,  when  tested  in  the  courts, 
would  be  held  valid. 

The  constitutionality  of  the  act  was  brought 
before  the  courts  for  consideration  in  the  case  of 
Pollock  v.  Farmers'  Loan  and  Trust  Company.1 
The  briefs,  arguments  of  learned  counsel,  and  the 
majority  and  dissenting  opinions  of  the  Court, 
make  this  one  of  the  longest  reported  cases  ever 
decided  by  the  Supreme  Court  of  the  United 
States.  The  importance  of  the  decision,  and  the 
interest  that  the  issue  had  aroused,  attracted  the 
attention  of  the  entire  country. 

The  law  was  attacked  in  the  briefs  and  argu- 
ments on  three  grounds:  (i)  That  the  tax  was 
direct  and  did  not  operate  uniformly;  (2)  it  was 
not  apportioned;  (3)  it  attempted  to  tax  the 
income  derived  from  public  or  Government  bonds. 
There  could  not  be  much  question  on  the  last 
point,  for  the  courts  had  repeatedly  held  that 
the  agencies  of  Government  could  not  be 
taxed. 

Chief  Justice  Fuller  rendered  the  decision  in  the 
case.  The  student  may  conveniently  divide  the 
opinion  into  two  parts:  (i)  The  judicial  and 
political  history  of  the  income  tax  before  the  Civil 
War  and  (2)  the  views  held  by  writers  subsequent 
to  that  period.  After  citing  many  authorities 
the  Chief  Justice  drew  the  following  conclusions 

1 157  United  States,  759. 


190  Interpretation  of  Political  Theory 

from  judicial  dicta  and  political  opinion  before 
the  war: 

1.  That  the  distinction  between   direct  and 
indirect   taxation   was   well   understood   by    the 
framers  of  the  Constitution. 

2.  That  under  state  systems  of  taxation  all 
taxes  on  real  estate  or  personal  property  or  rents 
or  incomes  were  regarded  as  direct  taxes. 

3.  That  rules  of  apportionment  and  uniform- 
ity were  adopted  in  view  of  that  distinction  and 
in  view  of  those  systems. 

4.  That   whether    a    tax    on    carriages    was 
a  direct  or  indirect  tax  was   disputed,   but  was 
upheld  as  an  excise  duty. 

5.  That  the  original  expectation  was  that  the 
power  of  direct  taxation  would  be  seldom  exercised. 

In  beginning  the  review  of  the  cases  cited  by 
counsel  in  support  of  the  law  that  have  arisen 
since  the  Civil  War,  the  Court  sought  evasion 
by  citing  the  doctrine  of  stare  decisis  as  follows: 
"  The  doctrine  of  stare  decisis  is  a  salutary  one,  and 
to  be  adhered  to  on  all  proper  occasions,  but  it  only 
arises  in  respect  of  decisions  directly  upon  the 
point  in  issue."  With  this  remark  the  Court 
brushes  aside  all  the  legal  dicta  bearing  on  the 
subject. 

Then  entering  upon  the  merits  of  the  case  the 
Chief  Justice  contends  that  a  tax  on  the  income  of 
land  is  the  same  as  a  tax  on  the  land,  and  since  a 
land  tax  is  admitted  to  be  direct,  it  follows  that 
the  income  from  land  is  direct. 


Theory  of  an  Income  Tax        191 

"The  real  question  is,  is  there  any  basis  upon 
which  to  rest  the  contention  that  real  estate 
belongs  to  one  of  the  great  classes  of  taxes,  and 
the  rent  or  income  which  is  the  incident  of  its 
ownership  belongs  to  another?  We  are  unable 
to  perceive  any  ground  for  the  alleged  distinction. 

"We  are  of  the  opinion  that  the  law  in  question, 
so  far  as  it  levies  a  tax  on  the  rents  or  income  of 
real  estate,  is  in  violation  of  the  Constitution,  and 
is  invalid." 

This  was  the  strongest  and  clearest  point  made 
by  the  Court.  The  Court's  argument  that  the 
income  tax  section  of  the  statute  was  repugnant 
to  the  Constitution  because  it  failed  to  secure 
uniformity  in  its  application  is  evasive  and 
unsatisfactory. 

The  animus,  too,  of  the  Court  was  revealed, 
when  in  the  conclusion  of  the  opinion,  the  declara- 
tion was  made  that  upon  each  of  the  following 
questions  argued  at  bar,  to  wit:  I.  Whether  the 
void  provisions  as  to  rents  and  income  from  real 
estate  invalidated  the  whole  act?  2.  Whether  as 
to  income  from  personal  property  as  such,  the  act 
is  unconstitutional,  as  laying  direct  taxes?  3. 
Whether  any  part  of  the  tax,  if  not  considered  as  a 
direct  tax,  is  invalid  for  want  of  uniformity  on  any 
of  the  grounds  suggested? — the  justices,  who  heard 
the  argument  were  equally  divided,  and,  therefore 
no  opinion  was  expressed. 

The  effect  of  this  decision  was  to  nullify  the  law 
without  passing  upon  the  constitutionality  of  an 
income  tax  law.  The  decision  was  a  disappoint- 


192  Interpretation  of  Political  Theory 

ment  to  many,  because  the  constitutionality  of 
such  a  law  had  been  called  into  question,  and  the 
country  at  large  was  in  doubt  concerning  the  power 
of  Congress  with  reference  to  it.  The  question 
was  squarely  before  the  Supreme  Court,  and  the 
fact  that  the  question  was  evaded  looked  to  many 
as  an  attempt  to  nullify  the  act  without  assuming 
responsibility  for  declaring  the  doctrine  on  which 
it  was  based  unconstitutional. 

However,  this  case  was  re-argued  in  May,  1895, 
and  on  May  20,  1895,  the  Court  handed  down  its 
opinion,  which  declared  the  income  tax  feature 
(sections  twenty-seven  to  thirty-seven,  inclusive, 
of  the  Act  of  1894)  unconstitutional,  and  void 
because  not  apportioned  according  to  representation. 
Four  justices  rendered  dissenting  opinions,  among 
these  being  a  strong  opinion  by  Justice  Harlan. 
The  close  decision  and  the  importance  of  the  issue 
left  the  question  in  doubt  in  the  minds  of  many 
lawyers  and  other  public  men. 

Some  contend  that  no  income  tax  bill  could  be 
drawn  that  would  not  be  so  involved  in  direct 
taxation  as  to  make  it  violate  a  fundamental 
principle  of  our  organic  law,  while  others  still 
believed  that  a  bill  could  be  so  worded  as  to  over- 
come the  objections  of  the  Supreme  Court,  and 
accomplish  the  desired  object.  The  former  view  is 
held  by  Skinner  in  his  Issues  of  American  Politics.* 
He  classes  taxes  under  the  provisions  of  the 
constitution  as  follows: 

1  Chapter  iii.,  pp.  472  and  483. 


Theory  of  an  Income  Tax         193 

I.     Direct. 

(1)  Real,  viz.:  Taxes  on  Land. 

(2)  Personal,  viz. :  Income  Taxes. 

(3)  Individual,  viz. :  Capitation  Taxes. 
II.     Indirect. 

Indirect  taxes  are  all  personal,  viz. :  Taxes 
upon  rents,  vocations,  wages  of  labor,  profits, 
and  commodities.  The  second  and  the  last 
two  are  all  included  in  the  term  excise. 

After  making  this  classification  the  author  com- 
ments as  follows: 

"As  confined  to  the  United  States,  the  scheme 
of  an  income  tax  arrays  itself  against  the  sanctity 
of  our  organic  law.  It  is  unqualifiedly  unconstitu- 
tional. Our  table  places  an  income  tax  under  the 
head  of  direct  taxation,  and  there  it  unqualifiedly 
belongs.  No  authority  of  any  weight  has  ever 
denied  the  proposition.  All  direct  taxes  must  be 
laid  upon  the  basis  of  the  representative  popula- 
tion, as  distinguished  from  the  other  general  canon 
therein  given  of  uniformity.  The  income  tax, 
however,  was  laid  upon  the  basis  of  uniformity, 
without  regard  to  the  extent  of  the  representative 
population,  all  incomes  having  been  levied  upon 
wherever  found. " 

The  opposite  view  is  taken  by  Professor  Bascom 
in  his  Growth  of  Nationality  in  the  United  States,  * 
and  vigorously  defended.  In  his  criticism  of  the 
Pollock  case,  he  says: 

"It  is  not  easy  to  find  another  decision  which  so 
openly  departs  from  the  law  in  order  to  shelter 

1  P.  192. 

13 


194  Interpretation  of  Political  Theory 

privilege.  The  technical  ground  on  which  this 
was  done  was  that  a  tax  on  income,  derived  from 
real  estate,  is  a  tax  on  real  estate.  A  logical  rela- 
tion is  thus  made  to  push  aside  a  plain,  practical 
fact,  that  had  long  been  accepted,  and  this  with 
no  other  result  than  to  embarrass  the  government 
and  restrain  it  in  pursuit  of  justice.  An  income 
tax  as  a  tax, — the  only  relation  in  which  we  have 
occasion  to  consider  it — is  wholly  distinct  in  form 
and  substance  from  a  tax  on  real  estate.  Its  rela- 
tions as  a  tax  are  quite  its  own,  and  it  carries  with 
it  as  significant  and  beneficent  results  as  any  tax 
whatever.  If  we  were  to  divide  up  an  income  tax 
according  to  the  sources  from  which  an  income  is 
derived,  we  might  dissolve  away  its  own  character- 
istics and  assign  it  a  great  variety  of  forms  and 
qualities.  If  the  income  arose  from  traffic,  it 
would  assume  the  character  of  a  license;  or  if  the 
trade  were  foreign  trade  the  nature  of  a  duty.  If 
it  were  derived  from  production,  its  effects  would 
be  those  of  an  excise.  Against  this  subtle  reason- 
ing, shaped  to  sustain  an  object,  there  remains  the 
simple  fact  that  an  income  tax,  a  tax  of  its  own 
order  with  its  own  results,  has  been  repeatedly 
recognized,  and  was  able,  in  a  high  degree,  to 

subserve  the  public  welfare. " 

• 

A  similar  view  was  held  by  Senator  Bailey  of 
Texas.  He  introduced  an  amendment  to  the 
Paine  Tariff  Bill  in  the  form  of  an  income  tax 
which  he  believed  would  be  upheld  by  the  courts, 
should  the  amendment  have  been  incorporated 
in  the  bill  and  passed  by  Congress.  Senator 
Bailey,  in  a  notable  speech  delivered  in  the 
United  States  Senate  on  April  26  and  27,  1909, 


Theory  of  an  Income  Tax         195 

laid  much  stress  on  the  soundness  of  the  opinion 
in  the  Hylton  and  Springer  cases,  and  contended 
that  the  second  opinion  in  the  Pollock  case,  which 
went  so  far  as  to  declare  that  a  tax  on  personal 
property  was  a  direct  tax  and  therefore  unconstitu- 
tional, was,  not  only  in  conflict  with  the  Springer 
case,  but  that  it  was  in  hopeless  conflict  with  the 
first  opinion  in  the  Pollock  case. 

"Not  only  is  the  second  decision  in  the  Pollock 
case  in  hopeless  and  irreconcilable  conflict  with 
the  Springer  case  but  it  is  inconsistent  with  the 
first  opinion  in  the  Pollock  case.  It  is  true  enough 
that  the  Court  equally  divided  on  the  question  as 
to  whether  a  tax  on  the  income  of  personal  prop- 
erty is  a  direct  tax,  and  the  four  judges  who  voted 
to  affirm  that  doctrine  in  the  first  case  are  not 
embarrassed  by  the  decision  upon  the  rehearing; 
but  in  the  opinion,  Chief  Justice  Fuller,  speaking 
for  his  brothers  who  agreed  with  him,  excused 
them  for  refusing  to  hold  that  a  tax  on  the  income 
from  personal  property  was  direct  after  they  had 
decided  that  an  income  on  real  estate  was  a  direct 
tax.  This  is  his  language : 

" '  We  admit  that  it  may  not  unreasonably  be  said 
that  logically,  if  taxes  on  the  rents,  issues,  and 
profits  of  real  estate  are  equivalent  to  taxes  on 
real  estate,  and  are  therefore  direct  taxes,  taxes  on 
the  income  of  personal  property  as  such  are  equiva- 
lent to  taxes  on  such  property,  and  therefore 
direct  taxes.  But  we  are  considering  the  rule  stare 
decisis  and  we  must  decline  to  hold  ourselves 
bound  to  extend  the  scope  of  decisions. ' 

"Thus,  Mr.  President,  the  Court,  in  that  first 
opinion  conceded  that  the  uniform  decisions  have 


196  Interpretation  of  Political  Theory 

been  that  a  tax  on  the  income  of  personal  property 
is  not  a  direct  tax;  but  one  of  the  justices  had  now 
changed  his  opinion,  and  these  cases  were  to  be 
reversed." 

But  the  difficulty  of  drawing  a  bill  that  would 
clearly  meet  the  objections  raised  by  the  Supreme 
Court  became  increasingly  apparent.  The  Demo- 
crats had  attempted  to  include  an  income-tax 
provision  in  several  excise  tax  bills,  and  it  was 
becoming  more  and  more  a  conviction  that  this 
was  "an  attempt  to  evade  the  judicial  interpreta- 
tion of  the  Constitution,"  and  to  make  a  tax 
measure  at  the  same  time  both  a  direct  and  an 
indirect  tax.1  This  was  what  the  New  York 
Evening  Post  characterized  as  an  unworthy  piece 
of  "Legislative  quibbling."  The  Democratic  Ex- 
cise Tax  Bill  (The  Underwood  Bill)  of  1912 
omitted  the  income  tax  feature  and  the  House 
Ways  and  Means  Committee  did  not  report  in 
favor  of  an  income  tax  section,  and  gave  the 
following  as  the  reasons : 

"First.  Because  the  Supreme  Court  has  de- 
clared a  general  income-tax  law  unconstitutional 
for  lack  of  apportionment,  and  provision  has  been 
made  whereby  the  states  are  now  considering  the 
acceptance  or  rejection  of  the  proposed  Sixteenth 
Amendment  to  the  Constitution  giving  Congress 
undisputed  authority  to  impose  such  a  general 
tax. 

1  See  The  Literary  Digest,  vol.  xliv.,  No.  13,  issue  of  March 
30,  1912. 


Theory  of  an  Income  Tax         197 

"Second.  Because  through  the  decision  of  the 
Supreme  Court  in  upholding  the  constitutionality 
of  the  existing  Corporation  Tax  Law  the  com- 
mittee has  conceived  the  idea  of  extending  its 
provisions  as  proposed,  and  to  obtain  in  this  way 
the  practical  results  of  an  income-tax  law  without 
violating  the  ruling  of  the  Supreme  Court  in 
rejecting  the  Income  Tax  Law  of  1894." 

The  Sixteenth  Amendment  was  proposed  by 
Congress  in  1909,  and  ratified  by  the  required 
number  of  states  in  February,  1913.  The  proposed 
amendment  as  submitted  to  the  states  by  Congress 
reads  as  follows: 

"The  Congress  shall  have  power  to  lay  and 
collect  taxes  on  incomes,  from  whatever  source 
derived,  without  apportionment  among  the  several 
states  and  without  regard  to  any  census  or 
enumeration." 

The  process  of  ratification  by  the  required  three- 
fourths  (thirty-six)  of  the  state  legislatures  con- 
sumed almost  four  years  from  the  time  of  its 
submission.  A  favorable  vote  by  thirty-nine  state 
legislatures  only  shows  that  the  sentiment  for  the 
amendment  was  by  no  means  unanimous.  The 
South  and  West  are  responsible  for  the  existence 
of  the  amendment.  The  opposition  came  largely 
from  the  Northeast1  where  only  Maine,  Mary- 
land, and  New  York  took  favorable  action  of  those 

1  The  New  England  view -point  is  well  illustrated  by  William 
Lyon  Phelps  of  Yale  in  an  article  on  "The  Income  Tax"  in  the 
Independent  for  September  19,  1913. 


198  Interpretation  of  Political  Theory 

states  east  of  the  Alleghany  Mountains  and  north 
of  the  Potomac;  and  New  York's  favorable  vote 
was  due  to  the  Democratic  administration  that 
happened  to  be  in  power.  The  amendment  was 
weakest  in  New  England  where  protectionist  in- 
fluence was  strongest.  The  real  difficulty  con- 
nected with  the  changing  of  our  organic  law  is 
thus  realized  when  we  consider  the  conflicting 
interests  that  must  be  taken  into  account,  and  the 
length  of  time  necessary  to  secure  ratification. 
This  amendment  represents  the  first  change  in 
our  organic  law  in  forty- three  years,  and  seems  to 
represent  the  Nation's  answer  to  the  Supreme 
Court's  decision  of  eighteen  years  ago,  that  de- 
clared an  income  tax  unconstitutional.  These 
periods  of  time,  together  with  the  fact  that  it 
required  four  years  to  secure  ratification  of  the 
amendment,  supply  ample  justification  for  the 
American  doctrine  of  loose  construction. 

The  Sixteenth  Amendment  permits,  but  it  does 
not  command,  the  levy-  of  an  income  tax.  But  the 
Democrats  have  sought  the  exercise  of  this  power 
because  they  have  been  committed  to  the  down- 
ward revision  of  our  tariff  schedules,  and  they 
sought  to  use  the  proceeds  derived  from  an  income 
tax  to  make  up  the  loss  in  governmental  revenues 
as  a  result  of  reductions  in  tariff  duties.  So,  as  we 
naturally  expected,  the  Democrats  were  not  slow 
to  make  use  of  the  power  granted  by  the  Sixteenth 
Amendment.  Even  before  the  amendment  had 
been  officially  declared  adopted,  the  Ways  and 


Theory  of  an  Income  Tax         199 

Means  Committee  of  the  House  of  Representa- 
tives had  allotted  to  Representative  Cordell  Hull, 
of  Tennessee,  the  author  of  the  Excise-Tax  Law, 
the  duty  of  drafting  an  income-tax  bill,  and  on 
October  13,  1913,  this  bill  was  placed  on  the 
statute  books  of  the  United  States.  The  law  has 
been  attacked  on  the  ground  that  it  presents 
many  complexities.  A  recent  writer1  has  said: 
"The  ablest  lawyers,  the  most  experienced  and 
astute  business  men,  the  most  careful  students 
and  writers  fail  utterly  to  agree  as  to  its  interpreta- 
tion and  scope. "  One  of  the  principal  contentions 
of  the  opponents  of  the  law  is  that  it  is  discrimina- 
tory in  that  it  imposes  a  special  tax  on  only  about 
430,000  persons  in  the  country.  The  author  of 
the  law  denies  this  contention,  and  says  that  "if 
this  is  the  chief  criticism  of  the  act  the  country 
may  rest  assured  that  the  validity  of  the  statute 
will  be  upheld  by  the  Supreme  Court."  It  is 
safe  to  predict  that  the  constitutionality  of 
the  law  will  not  be  long  in  question,  but  like 
other  complicated  and  political  statutes,  legal 
attacks  will  be  made  on  it,  and  the  courts  will  be 
required  to  pass  on  its  application  and  administra- 
tion. But  with  this  exception  we  may  safely 
consider  the  question  of  an  income  tax  a  settled 
political  issue  in  this  country. 
The  manner  of  settlement  of  the  political  phases 

1  Mr.  Benjamin  S.  Orcutt  on  the  "Complexities  of  the  Income 
Tax, "  in  the  American  Review  of  Reviews,  vol.  xlix.,  for  January, 


200  Interpretation  of  Political  Theory 

of  an  income  tax  represents  more  perfectly  the 
logical  process  in  the  adjustment  of  political  differ- 
ences than  is  to  be  found  in  the  history  of  any 
other  political  question.  Starting  as  a  political 
issue,  enacted  into  law,  and  tested  as  to  its  consti- 
tutionality by  the  Supreme  Court,  and  by  this 
tribunal  declared  not  to  be  in  harmony  with  the 
Constitution,  it  was  ultimately,  as  a  result  of  a 
platform  demand  of  the  Democratic  party  in  1908, 
to  be  submitted  to  the  American  people  in  the 
form  of  an  amendment,  and  by  them  to  be  made  a 
part  of  the  Constitution  itself.  Thus,  this  political 
issue  was,  in  due  course  of  time,  to  pass  succes- 
sively through  every  stage  of  transition  open  to  a 
political  issue  in  reaching  final  confirmation  and  so- 
lution. No  other  fundamental  question  in  Ameri- 
can politics  has  been  carried  beyond  the  solemn 
conclusions  of  the  Supreme  Court,  with  the  excep- 
tion of  the  issue  of  slavery,  and  in  rejecting  the 
peaceful  method  provided  by  the  Constitution  for 
the  ultimate  solution  of  political  differences,  the 
American  people  found  themselves  compelled  to 
resort  to  the  only  other  means  open  to  them,  i.  e., 
an  appeal  to  arms.  Not  the  least  benefit  that  will 
result  from  the  final  solution  of  the  income-tax 
question  will  be  the  illustration  that  it  has  given 
of  the  effectiveness  of  the  method  provided  in 
our  Federal  Constitution  for  satisfactorily  adjust- 
ing our  important  differences  by  legal  and  peaceful 
means. 


CHAPTER  X 

THE  THEORY  OF  DIRECT  LEGISLATION 

HPHE  belief  in  the  theory  and  possibilities  of 
1  direct  legislation  has  been  growing  in  popu- 
lar favor  in  this  country  in  the  last  few  years. 
It  was  first  advocated  in  recent  times  by  the 
"Grange,"  and  the  so-called  "People's  party" 
took  up  the  slogan  in  its  first  party  platform  in 
1892,  and  consistently  incorporated  this  doctrine, 
under  the  names  of  the  initiative  and  referendum, 
in  each  succeeding  platform  up  to  the  present 
time.  In  the  campaign  of  1912,  the  Progressive 
Republicans  made  the  initiative  and  referendum 
a  plank  in  their  platform,  and  President  Wilson 
during  the  campaign  mildly  advocated  the  princi- 
ple in  state  and  local  affairs.  The  fact  that  the 
doctrine  has  been  seriously  questioned  on  the 
ground  that  it  is  subversive  of  representative 
government  (and  on  this  issue  it  has  been  brought 
to  the  attention  of  the  Courts)  brings  the  subject 
within  the  purview  of  this  discussion. 

The  idea  of  direct  legislation  is  an  old  one,  and 
seems  to  embody  the  very  essence  of  democratic 
self-government.  The  Ecclesia  at  Athens,  which 
was  established  by  Solon  in  the  sixth  century 

201 


202  Interpretation  of  Political  Theory 

B.  c.,  was  designed  with  this  idea  in  mind.  It 
was  composed  of  the  citizens  who  came  together 
to  decide  such  questions  as  war  and  peace,  and  to 
them  were  referred  such  matters  as  were  deemed 
important  by  the  Council  of  Four  Hundred.  The 
Romans  had  a  similar  organ  of  government  during 
the  days  of  the  Republic,  known  as  the  Comitia 
Tributa,  or  assembly  of  the  people  by  tribes. 
During  the  last  days  of  the  Republic  this  became 
the  law-making  body.  In  some  of  the  cantons  of 
Switzerland  the  Landesgemeinde,  or  gathering  of 
the  people  is  a  law-making  body,  and  has  been  in 
existence  for  centuries.1  To  Switzerland  we  turn 
to-day  for  our  classic  example  of  direct  legisla- 
tion. 3  An  almost  exact  counterpart  of  the  Landes- 
gemeinde  of  Switzerland  is  found  in  the  "Town 
Meeting,"  which  was  so  common  in  New  England 
in  colonial  times.  Once  each  year  (or  oftener  if 
need  be)  the  voters  of  the  township  came  together 
and  voted  on  questions  of  taxation,  expenditure 
for  improvements,  and  similar  matters.  The  select- 
men or  township  officers  were  also  elected  at  these 
meetings.  We  have  no  better  example  of  direct 

1  Leacock's  Elements  of  Political  Science,  p.  174  et  seq.  and 
Woodrow  Wilson's  The  State,  Section  1361. 

3  The  student  who  is  interested  in  the  workings  of  direct 
legislation  would  do  well  to  examine  Appendix  A  of  President 
Lowell's  Public  Opinion  and  Popular  Government  (1913).  This 
appendix  outlines  the  subjects  on  which  the  referendum  and 
initiative  have  been  taken  since  the  adoption  of  the  general 
referendum  by  the  constitution  of  1874  until  1912,  and  in  the 
cantons  from  1893  to  1910.  The  vote  cast  for  and  against  each 
is  also  given. 


The  Theory  of  Direct  Legislation  203 

legislation   than  the  type  represented  by  these 
town  meetings. 

But  the  organization  of  larger  and  more  com- 
plex states  brought  into  existence  a  new  type  of 
legislation — that  by  representation,  and  for  this 
we  are  indebted  to  the  Teutons. 

11  The  Teuton, "  says  Woodrow  Wilson,  "brought 
into  force,  particularly  in  England,  the  principle 
of  representation,  that  organization  by  representa- 
tive assemblies  which  enabled  the  people  to  act 
over  wide  areas  through  trusted  men  elected  to 
speak  and  act  in  their  stead,  and  which  thus 
enabled  the  organization  of  the  nation  to  extend 
without  loss  of  vitality."1 

The  transition  from  immediate  to  representative 
government  is  illustrated  by  Woodrow  Wilson2 
with  two  examples  taken  from  our  colonial  history. 
The  earliest  Legislature  of  Maryland  was  composed 
of  all  the  freemen  of  the  colony;  but  the  next 
assembly  was  partly  representative,  as  some  of  the 
freemen  sent  proxies ;  and  for  the  assemblies  there- 
after the  number  of  representatives  increased  and 
the  number  of  freemen  attending  in  their  own  right 
decreased  constantly,  until  it  finally  became  totally 
representative.  The  other  example  is  that  of 
Rhode  Island  which  had  the  early  custom  of 
permitting  all  the  citizens  to  meet  in  primary 
assembly  at  Newport  for  the  purpose  of  choosing 
the  members  of  the  colonial  legislature,  after 

1  The  State  (Revised  Edition),  p.  560. 
•Op.  cit.,  p.  561. 


204  Interpretation  of  Political  Theory 

which  they  withdrew,  leaving  the  representatives 
to  perform  their  duties  in  their  representative 
capacity.  While  these  two  illustrations  differ  in 
detail,  both  may  be  said  to  represent  missing 
links  between  immediate  and  representative  prin- 
ciples of  law-making  and  government  policy. 

The  principal  of  constitutional  referendum  may 
be  said  to  be  a  surviving  form  of  the  direct  system 
of  legislation  that  has  been  handed  down  as  a 
heritage  from  colonial  days.  It  has  been  adopted 
in  all  the  states  of  the  American  Union  with  the 
single  exception  of  the  state  of  Delaware.  The 
earliest  instance  of  this  revival  of  the  principle  of 
direct  legislation  in  its  modern  form  occurred  in 
1816,  when  petitions  were  presented  to  the  General 
Court1  of  Massachusetts  allowing  the  District  of 
Maine  to  separate  from  Massachusetts.  In  com- 
pliance with  this  request  the  General  Court  sub- 
mitted the  question  to  the  qualified  voters  of  the 
District  of  Maine  with  the  request  that  on  the 
twentieth  day  of  May  they  give  in  their  written 
votes  on  the  following  question  to  wit:  "Shall 
the  Legislature  be  requested  to  give  its  consent 
to  the  separation  of  the  District  of  Maine  from 
Massachusetts  proper,  and  to  the  erection  of  said 
District  into  a  separate  State?"2  This  in  effect 
was  a  constitutional  amendment,  and  is  histori- 
cally important  as  marking  the  beginning  of  the 

1  This  was  the  name  of  the  legislative  body  (House  and  Senate). 
See  Constitution  of  1780,  chapter  i.,  article  I. 
*  Mass.  Resolves,  Sessions,  1816,  p.  148. 


The  Theory  of  Direct  Legislation  205 

revival   of   the   custom  of  direct  legislation   by 
referendum  vote. 

Statutory  referendum  became  common  in  many 
states  early  in  the  nineteenth  century.  In  1821, 
the  General  Court  of  Massachusetts  passed  "an 
act  establishing  the  city  of  Boston, "  subject,  how- 
ever, to  the  condition  that  the  act  must  be  ap- 
proved by  the  citizens  of  Boston  within  twelve 
days.  At  this  time  the  General  Court  passed  "an 
act  to  regulate  the  administration  of  justice  within 
the  county  of  Suffolk, " r  but  this  act  was  declared 
to  be  of  no  effect  and  void  unless  the  charter  was 
adopted  by  the  people  of  Boston  pursuant  to  the 
provisions  therein  made.  Out  of  this  legislation 
came  the  first  decision  designed  to  test  the  validity 
of  such  legislation.  The  question  came  before  the 
Supreme  Judicial  Court  in  1826,  and  Judge  Parker 
used  the  following  language  in  passing  upon  the 
constitutionality  of  this  statute : 

"This  objection,  for  aught  we  see,  stands  un- 
supported by  any  authority  or  sound  argument. 
Why  may  not  the  Legislature  make  the  existence 
of  any  act  depend  upon  the  happening  of  any 
future  event?  Constitutions  themselves  are  so 
made.  .  .  .  We  see  no  impropriety,  certainly 
no  unconstitutionality,  in  giving  the  people  the 
opportunity  to  accept  or  reject  such  provisions."2 

To  Massachusetts  belongs  the  distinction  of 
giving  to  the  world  the  first  example  of  a  popularly 

1  General  Laws  of  Mass.,  sec.  17. 
1  Wales  v.  Belcher,  3  Pick.,  508. 


206  Interpretation  of  Political  Theory 

ratified  constitution, and  to  this  state  also  "belongs 
the  further  distinction  of  having  revived  and 
perpetuated  the  popular  legislation  of  her  colonial 
era."1 

But  statutory  referendum  became  quite  widely 
diffused  rather  early  in  the  nineteenth  century. 
The  public  school  had  been  a  common  subject  of 
discussion  at  the  town  meetings  of  an  earlier  era, 
and  it  was  but  natural  that  the  legislatures  of 
a  later  day  should  be  disposed  to  empower  local 
communities  with  authority  to  create  schools  and 
provide  for  their  maintenance.  In  Maryland  a 
statute2  was  passed  in  1826  providing  for  the 
establishment  of  a  system  of  primary  public 
instruction,  provided  a  majority  of  the  voters  in 
any  county  of  the  state  should  vote  in  favor  of 
such  primary  school  instruction.  Pennsylvania 
soon  adopted  a  similar  measure.3  The  Constitu- 
tion4 of  the  Texas  Republic,  adopted  in  1836, 
provided  that  "no  county  shall  be  established 
unless  it  be  done  on  the  petition  of  one  hundred 
free  male  inhabitants." 

These  examples  suffice  to  show  that  the  principle 
of  direct  legislation  is  not  new  in  America.  But 
in  the  past  the  referendum  was  much  more  com- 
mon than  the  initiative,  and  the  two  were  never 
thought  of  as  reciprocal  legislative  agencies.  Pub- 
lic interest  in  the  subject  was  revived  by  the 

1  See  Lobingier's  The  People's  Law,  p.  197  etseq.  and  p.  349. 

*  Maryland  Laws,  1825,  chapter  162. 

^  Act  of  April  15,  1835.  ••  Article  IV.,  section  n. 


The  Theory  of  Direct  Legislation  207 

publication  in  America  of  Bryce's  American  Com- 
monwealth in  1888,  which  made  a  careful  compara- 
tive study  of  American  institutions  with  those 
of  European  countries,  and  the  luminous  com- 
parison with  Switzerland,  which  is  also  a  republic, 
made  a  profound  impression  on  the  American 
people.  A  more  recent  study  of  the  subject  by 
Dr.  Borgeaud1  has  had  a  marked  effect  on  the 
American  public  mind.  It  has  required  only  a 
few  years  for  these  academic  discussions  to  pass 
into  practical  legislation,  and  the  legislation,  in 
connection  with  the  Court  decisions  relating  to 
them,  will  now  be  briefly  reviewed. 

The  People's  party  platform  of  1892,  which  was 
the  first  national  platform  of  this  party,  passed  a 
resolution  commending  "to  the  thoughtful  con- 
sideration of  the  people  and  the  reform  press,  the 
legislative  system  known  as  the  initiative  and 
referendum."  This  marked  the  inauguration  of 
this  political  doctrine  in  this  country.  The 
People's  party  has  continued  to  incorporate  it  in 
each  platform  since  that  time,  and  in  the  decline 
of  this  party's  influence,  we  find  the  doctrine 
taken  up  with  renewed  zeal  by  the  Progressive 
Republicans  in  1912.  It  is  safe  to  predict  that 
we  will  hear  much  of  this  subject  in  political 
discussion  during  the  next  few  years. 

In  the  mean  time  the  principle  has  been  gradu- 
ally working  its  way  into  the  constitutions  of  the 
states  of  the  Union  and  gaining  strength  in  the 

1  Rise  of  Modern  Democracy  in  Old  and  New  England  (1894). 


208  Interpretation  of  Political  Theory 

public  mind.  The  first  formal  adoption  in  America 
of  the  initiative  and  referendum  in  their  applica- 
tion to  general  legislation  was  the  result  of  a  joint 
resolution1  passed  by  the  Legislature  of  South 
Dakota  in  1897,  which  was  duly  ratified  by  the 
people.2  Section  2  of  this  resolution  reads  as 
follows: 

"The  legislative  power  of  the  state  shall  be 
vested  in  a  legislature,  which  shall  consist  of  a 
senate  and  house  of  representatives,  except  that 
the  people  expressly  reserve  to  themselves  the  right 
to  propose  measures,  which  measures  the  legis- 
lature shall  enact  and  submit  to  a  vote  of  the 
electors  of  the  state  and  also  the  right  to  require 
that  any  laws  which  the  legislature  may  have 
enacted  shall  be  submitted  to  a  vote  of  the  electors 
of  the  state  before  going  into  effect  except  such 
laws  as  may  be  necessary  for  the  immediate 
preservation  of  the  public  peace,  health,  or  safety, 
support  of  the  state  government  and  its  existing 
public  institutions. " 

The  section  further  provides  that  five  per  cent, 
of  the  electors  by  petition  may  invoke  the  provi- 
sions of  the  constitution. 

Utah  was  the  second  state  to  adopt  the  principle 
of  direct  legislation.  The  legislature  of  this  state 
submitted  to  the  people  a  joint  resolution3  propos- 
ing an  amendment  of  this  kind  in  1899.  The 

1  South  Dakota  Laws,  5th  Sess.,  chapter  39. 

*  In  November,  1898. 

»  Utah  Senate  Journal  3d  Session,  p.  453. 


The  Theory  of  Direct  Legislation  209 

phraseology  of  this  resolution  differed  somewhat 
from  that  of  the  resolution  adopted  in  South 
Dakota.  It  provided  that: 

"The  legal  voters,  or  such  fractional  part  thereof, 
of  the  state  of  Utah  as  may  be  provided  by  law, 
under  such  conditions  and  in  such  manner  and 
within  such  time  as  may  be  provided  by  law,  may 
initiate  any  desired  legislation  and  cause  the  same 
to  be  submitted  to  a  vote  of  the  people  for  approval 
or  rejection,  or  may  require  any  law  passed  by  the 
legislature  (except  those  laws  passed  by  a  two- 
thirds  vote  of  the  members  elected  to  each  house 
of  the  legislature)  to  be  submitted  to  the  voters 
of  the  state  before  such  law  shall  take  effect. " 

This  proposal  was  approved  by  the  people  of  the 
state  at  the  election  in  November,  1900,  and  by  a 
majority  of  almost  three  to  one. 

Oregon,  Nevada,  Missouri,  Montana,  Delaware, 
Maine,  Oklahoma,  North  Dakota,  and  Ohio,  in 
the  order  named,  have  adopted  the  initiative  and 
referendum  in  some  form.  Oregon  began  even 
earlier  than  Utah  to  apply  this  principle,  but  the 
constitutional  provision  requiring  action  by  two 
successive  legislatures  retarded  somewhat  the 
actual  operation  of  such  a  plan.  This  state  first 
proposed  a  joint  resolution  in  1899,  and  it  was 
duly  approved  by  the  governor  on  February  6th 
of  that  year.  But  as  it  had  to  come  before  the 
Legislature  again  in  1901,  it  was  not  formally  sub- 
mitted to  the  people  for  ratification  until  June, 
1902,  at  which  time  the  amendment  was  ratified 

14 


210  Interpretation  of  Political  Theory 

by  a  majority  of  about  eleven  to  one.  This  amend- 
ment, together  with  a  similar  one,  adopted  in  1903, 
has  carried  the  principle  of  direct  legislation  further 
than  it  has  been  carried  in  any  other  state.  * 

In  Missouri  the  proposed  amendment  incor- 
porating the  initiative  and  referendum  in  the 
constitution  was  first  proposed  by  the  Legislature 
of  that  state  in  1903.  When  the  matter  was  sub- 
mitted to  the  people,  it  failed  of  adoption.  This 
seems  to  have  been  the  first  time  such  a  resolution 
was  defeated  when  fairly  presented  to  the  people 
for  ratification.  But  the  matter  was  resubmitted 
by  the  Legislature  in  1907,  the  phraseology  being 
somewhat  different  from  the  earlier  resolution, 
and  this  time  the  resolution  was  adopted  by  a 
majority  of  thirty  thousand. 

The  new  State  of  Oklahoma  has  the  distinction 
of  being  the  first  state  to  incorporate  the  initiative 
and  referendum  in  an  original  constitution.  The 
article2  had  the  effect  of  retarding  the  acceptance 
of  the  state  into  the  Union  by  Congress,  but  the 
constitution  was  adopted  by  the  people  by  an 
unusual  majority. 

The  adoption  of  the  initiative  and  referendum 
in  the  new  constitution  of  Ohio  in  1912,  was 
significant  because  Ohio  has  been  regarded  as  one 
of  the  more  conservative  states.  This  new  con- 
stitution goes  further  in  some  particulars  than 
that  of  any  other  state  in  the  application  of  the 
principle;  especially  is  this  true  of  the  number  of 

1  Oregon  Laws,  1903,  p.  244,  sec.  8.  a  Article  V. 


The  Theory  of  Direct  Legislation  211 

petitioners  required  to  invoke  a  referendum  vote, 
the  percentage  being  only  three  per  cent,  of  the 
voters  of  the  state.  A  writer  in  a  leading  magazine 
has  said:  "The  initiative  and  referendum  amend- 
ment, now  a  part  of  the  Ohio  constitution,  is  more 
radical  and  misrepresentative  in  its  operation  than 
the  similar  measures  in  any  other  states  of  the 
Union."1 

This  brief  description  is  sufficient  to  show  the 
nature  and  extent  of  the  growth  of  the  doctrine 
of  direct  legislation  in  this  country.  It  is  easy  to 
see  that  it  has  been  revived  and  reestablished  upon 
the  models  given  us  by  Switzerland.  But  in  this 
country  the  provisions  of  the  constitution  of  Ore- 
gon have  been  followed  very  closely.  In  many 
cases  the  phraseology  of  the  Oregon  constitution 
relating  to  this  subject  has  been  appropriated. 
In  brief  the  essential  provisions  of  the  constitution 
of  Oregon  are  as  follows:  (i)  Legal  voters  at 
least  equal  to  eight  per  cent,  may  initiate  legisla- 
tion; (2)  five  per  cent,  of  the  voters  may  cause  a 
referendum  to  be  taken  on  laws  which  have  been 
enacted  by  the  legislature;  (3)  the  referendum 
must  be  invoked  within  ninety  days ;  (4)  the  legis- 
lature may  on  its  own  motion  make  operative  any 
law  which  it  may  pass  only  after  ratification  by 
the  people;  (5)  exception  is  made  for  laws  "neces- 
sary for  the  immediate  preservation  of  the  public 
peace,  health,  or  safety";  (6)  the  veto  power  of 

'Ryan's  "The  Influence  of  Socialism  on  the  Ohio  Constitu- 
tion," in  The  North  American  Review  for  November,  1912,  p.  665. 


212  Interpretation  of  Political  Theory 

the  governor  is  withheld  in  all  cases  of  popular 
ratification  or  approval.  It  is  seen  that  the  sys- 
tem is  merely  an  alternative  one.  Law-making 
by  the  regularly  constituted  legislature  is  not 
abolished,  but  merely  supplemented  with  law- 
making  by  popular  vote,  and  the  latter  method  is 
made  inoperative  in  all  cases  where  speedy  action 
is  necessary  to  protect  the  public  interest. * 

Passing  over  many  unessential  details  connected 
with  the  system,  the  fate  of  direct  legislation 
before  the  courts  will  be  briefly  reviewed.  The 
constitutional  question  involved  is  that  of  its 
effect  on  representative  government.  Does  direct 
legislation  abolish  or  destroy  representative  govern- 
ment? Our  Federal  Constitution  provides  that 
"The  United  States  shall  guarantee  to  every 
state  in  this  Union  a  Republican  form  of  Govern- 
ment, "  and  the  question  involved  is  that  of 
deciding  if  this  implies  a  representative  system  to 
the  exclusion  of  an  immediate  one.  A  definition 
or  two  will  be  helpful  in  the  approach  to  the 
judicial  opinion  on  the  subject : 

"Immediate  government,"  says  Professor  Bur- 
gess, "is  that  form  in  which  the  state  exercises 
directly  the  functions  of  Government."3 

"Representative  government, "  says  this  author 
"is,  in  general  definition,  that  form  in  which  the 
state  vests  the  power  of  government  in  an  organi- 

1  The  works  of  Oberholtzer,  The  Referendum,  Initiative,  and  Re. 
call  in  America,  and  Lobinger's  The  People's  Law  have  been  freely 
consulted  in  this  discussion. 

1  Political  Science  and  Constitutional  Law,  vol.  ii.,  p.  I. 


The  Theory  of  Direct  Legislation  213 

zation  or  in  organizations  more  or  less  distinct 
from  its  own  organization."1 

Professor  Garner  says:  "Where  the  sovereign 
has  delegated  to  an  organ  or  organs  the  power 
to  act  for  it  in  matters  of  government,  as  is 
now  the  almost  universal  practice,  we  have  repre- 
sentative government  in  some  form."2 

"We  mean  by  representative  government, "  says 
Lord  Brougham,3  "one  in  which  the  body  of  the 
people,  either  in  whole  or  in  a  considerable  propor- 
tion of  the  whole,  elect  their  deputies  to  a  chamber 
of  their  own."  These  definitions  are  sufficient  to 
indicate  the  academic  teaching  on  the  subject. 
The  view  of  the  courts  will  now  be  studied  in  the 
light  of  these  definitions. 

The  constitutionality  of  direct  legislation  was 
promptly  and  completely  affirmed  in  the  state 
courts  of  Oregon  at  the  first  opportunity.  The 
first  case  involving  this  principle  reached  the 
Supreme  Court  of  Oregon  in  1903.  This  was  in 
the  case  of  Kadderly  v.  Portland4  and  the  amend- 
ment was  assailed  on  the  grounds  that  it  vio- 
lated that  provision  of  the  Federal  Constitution 
that  guaranteed  to  each  state  "a  republican  form 
of  government."  The  court  in  an  exhaustive 
opinion  upheld  the  amendment  in  every  particular, 
answering  the  constitutional  objection  in  this  em- 
phatic language : 

1  Op.  cit.,  vol.  ii.,  p.  2. 

2  Introduction  to  Political  Science,  p.  1 79. 

J  "British  Constitution,"  Works,  vol.  ii.,  p.  89. 
<  44  Oregon,  118. 


214  Interpretation  of  Political  Theory 

"The  initiative  and  referendum  amendment 
does  not  abolish  or  destroy  the  republican  form  of 
government  or  substitute  another  in  its  place. 
The  representative  character  of  the  government 
still  remains.  The  people  have  simply  reserved 
to  themselves  a  larger  share  of  legislative  power." 

This  opinion  has  been  twice  reaffirmed  by  the 
Supreme  Court  of  Oregon,  first,  in  1909,  in  the 
case  of  Oregon  v.  Pacific  States  Telephone  and 
Telegraph  Company,1  and  second,  in  the  case  of 
Kiernan  v.  City  of  Portland,2  the  decision  being 
rendered  in  this  case  in  1910.  The  Court  in  the 
latter  case  took  an  excursion  into  history  and 
quoted  from  some  of  the  founders  of  our  Govern- 
ment. For  instance,  we  are  reminded  that  James 
Wilson  defined  a  republic  as  a  government  con- 
structed on  the  belief  "that  the  supreme  power 
resides  in  the  body  of  the  people,"  and  Jefferson 
is  quoted  as  defining  a  republic  as  a  government 
"by  its  citizens  in  mass  acting  directly  and  not 
personally  according  to  rules  established  by  the 
majority,"  and  the  Court  concludes  that  Oregon 
has  not  departed  from  the  path  marked  out  by  the 
fathers  of  our  Republic  in  adopting  the  principle 
of  the  initiative  and  the  referendum. 

An  important  precedent  has  been  established 
in  the  state  of  Oklahoma  in  the  case  of  ex-parte 
Wagner,3  where  the  principle  of  direct  legislation 
is  upheld  on  the  grounds  that  it  was  a  part  of  the 
constitution  when  the  state  came  into  the  Union. 

1  53  Oregon,  162.        3 112  Pacific,  402.         3  21  Oklahoma,  33. 


The  Theory  of  Direct  Legislation  215 

The  Court  recites  the  fact  that  the  Constitution 
requires  that  each  state  entering  the  Union  shall 
"be  republican  in  form,"  that  the  constitution 
adopted  and  submitted  to  Congress  contained  a 
provision  relating  to  the  initiative  and  the  referen- 
dum, and  that  on  November  16,  1907,  President 
Roosevelt  proclaimed  Oklahoma  a  state  of  the 
Union,  declaring  at  the  same  time  the  "said  Con- 
stitution and  government  of  the  proposed  state  of 
Oklahoma  to  be  republican  in  form." 

The  Supreme  Court  of  California  makes  an 
important  point  in  the  case  of  In  re  Pfahler,1 
which  arose  out  of  the  Home  Rule  charter  of  Los 
Angeles,  the  decision  regarding  which  was  rendered 
in  1906.  The  Court  calls  attention  to  the  provi- 
sion of  the  Federal  Constitution  guaranteeing 
to  each  state  a  republican  form  of  government, 
and  then  reminds  us  that  it  was  a  fact  well- 
known  to  the  members  of  the  Federal  Conven- 
tion that  the  town-meeting  legislative  system 
prevailed  in  some  of  the  states  at  that  time, 
and  that  there  was  no  intention  to  bring  into 
question  the  validity  of  the  system  by  the  adoption 
of  the  Constitution.  The  Court  made  it  plain  that 
it  did  not  wish  "to  be  understood  as  intimating 
that  the  people  of  a  state  may  not  reserve  the 
supervisory  control  as  to  general  state  legislation 
afforded  by  the  initiative  and  referendum  without 
violating  this  provision  (art.  LV.,  sec.  4)  of  the 
Constitution." 

1  150  California,  71. 


216  Interpretation  of  Political  Theory 

In  Hopkins  v.  City  of  Duluth,1  a  Minnesota 
case  decided  in  1900,  this  language  is  used: 

"We  apprehend  that  a  little  reflection  must 
satisfy  any  one  that  the  advantage  of  providing 
local  self-government  by  the  voters  directly  inter- 
ested through  a  referendum  is  abstractly,  as  well 
as  concretely,  more  republican  than  through  repre- 
sentatives of  the  people  in  the  Legislature,  many 
of  whom  are  not  at  all  interested  in  the  affairs  of 
the  local  community.  .  .  .  The  test  of  republican 
or  democratic  government  is  the  will  of  the  people 
expressed  in  majorities  under  the  proper  forms  of 
law.  ...  So  long  as  the  ultimatum  of  decision 
is  left  to  the  will  of  the  people  at  the  ballot-box,  it 
(the  Government)  is  essentially  republican. " 

No  deliverance,  as  yet,  has  been  made  by  the 
Supreme  Court  on  this  subject,  but  we  have 
important  opinions  from  that  Court  on  the 
general  question  of  the  nature  of  a  republican 
form  of  government  that  may  indicate  very  defi- 
nitely what  we  may  expect  when  this  question 
comes  up  for  review  by  our  highest  Federal  Court. 
In  1874,  Chief  Justice  Waite  delivered  the  opinion 
in  the  case  of  Minor  v.  Happersett, 2  in  which  this 
language  was  used : 

"The  guarantee  is  of  a  republican  form  of 
government.  No  particular  government  is  desig- 
nated as  republican;  neither  is  the  exact  form  to 
be  guaranteed  in  any  manner  especially  designated. 
Here,  as  in  other  parts  of  the  instrument  [the 

'81  Minnesota,  189.  '21  Wall,  162. 


The  Theory  of  Direct  Legislation  217 

Constitution],  we  are  compelled  to  resort   else- 
where to  ascertain  what  was  intended. 

"The  guarantee  necessarily  implies  a  duty  on 
the  part  of  the  states  themselves  to  provide  such 
a  government.  All  the  states  had  governments 
when  the  Constitution  was  adopted.  In  all  the 
people  participated  to  some  extent  through  their 
representatives  elected  in  the  manner  specially 
provided.  These  governments  the  Constitution 
did  not  change.  They  were  accepted  precisely  as 
they  were,  and  it  is  therefore  to  be  presumed  that 
they  were  such  as  it  was  the  duty  of  the  states  to 
provide.  Thus  we  have  unmistakable  evidence 
of  what  was  republican  in  form  within  the  mean- 
ing of  that  term  as  employed  in  the  Constitution. " 

Cooley1  lays  down  the  same  principle  in  the 
following  words: 

"The  Constitution  of  the  United  States  assumes 
the  existence  of  thirteen  distinct  state  govern- 
ments, over  whose  people  its  authority  was  to  be 
extended  if  ratified  by  conventions  chosen  for  the 
purpose.  Each  of  these  states  was  then  exercising 
the  powers  of  government  under  some  form  of 
written  constitution,  and  that  instrument  would 
remain  unaffected  by  the  adoption  of  the  national 
Constitution,  except  in  those  particulars  in  which 
the  two  would  come  in  conflict;  and  as  to  those, 
the  latter  would  modify  and  control  the  former." 

But  as  a  matter  of  fact,  we  have  no  instance 
where  a  state,  after  the  adoption  of  the  national 
Constitution,  found  it  necessary  to  modify  its  con- 

1  Constitutional  Limitations  (Sixth  Edition),  chapter  iii.,  p.  42. 


218  Interpretation  of  Political  Theory 

stitution  in  order  to  bring  the  state  organic  law 
into  harmony  with  the  organic  law  of  the  Nation. 
A  rather  important  paragraph  relating  to  the 
nature  of  representative  government  occurs  in  the 
decision  of  In  re  Duncan, r  which  was  rendered  by 
Chief  Justice  Fuller  in  1891.  This  is  the  language 
used: 

"By  the  Constitution  a  republican  form  of  gov- 
ernment is  guaranteed  to  every  state  in  the  Union, 
and  the  distinguishing  feature  of  the  form  is  the 
right  of  the  people  to  choose  their  own  officers  for 
governmental  administration  and  pass  their  own 
laws  in  virtue  of  the  legislative  power  reposed  in 
representative  bodies  whose  legitimate  acts  may 
be  said  to  be  those  of  the  people  themselves. " 

It  is  necessary  at  this  point  to  remind  the  reader 
of  a  distinction  between  the  principle  of  direct 
legislation  in  local  districts  or  municipalities  and 
that  which  comprehends  and  affects  the  entire 
jurisdiction  of  the  state.  It  is  a  settled  principle 
of  constitutional  law  that  the  power  conferred  on 
the  Legislature  to  make  laws  cannot  be  delegated 
to  other  agencies, 2  unless  the  sovereign  power  that 
conferred  this  authority  upon  the  Legislature  should 
by  some  formal  act  decide  to  provide  for  such  a 

' 139  U.  S.,  p.  449. 

3  SeeCooley's  Constitutional  Limitations  (Sixth  Edition),  p.  137. 
Also  Locke  (On  Civil  Government):  "The  Legislature  neither 
must  nor  can  transfer  the  power  of  making  laws  to  anybody  else, 
or  place  it  anywhere  but  where  the  people  have. "  (Section  142.) 
Cooley  also  gives  an  important  list  of  decisions  in  which  this 
doctrine  is  maintained. 


The  Theory  of  Direct  Legislation  219 

delegation  of  power.  But  the  courts  have  been 
disposed  to  hold  that  municipal  organizations  are 
mere  auxiliaries  of  the  state  governments,  and 
that  the  re-delegation  of  the  law-making  power  to 
such  organizations  is  not  in  reality  a  delegation 
of  the  power  conferred  upon  the  Legislature  by  the 
sovereign  will  of  the  people  of  the  state. 

The  ability  of  the  courts  to  uphold  the  delega- 
tion of  legislative  functions  to  local  governmental 
organs  has  resulted  from  the  principle  of  our  laws 
that  gives  validity  to  conditional  enactments;  i.  e., 
those  that  have  been  passed  by  a  legislative  body 
but  whose  effect  depends  upon  the  happening  of 
some  future  event.  This  future  event  may  be  (i) 
the  "ascertainment  of  a  fact  upon  which  the  law 
makes  or  intends  to  make  its  own  action  depend, " 
(2)  "or  on  the  happening  of  a  certain  contin- 
gency."1 This  contingency  may  be  the  approval 
of  the  law  by  a  majority  of  the  qualified  voters. 
The  application  of  this  principle  has  enabled  the 
courts  in  many  states  to  uphold  the  principle  of 
law-making  by  popular  vote. 

While  direct  legislation  has  been  upheld  where 
exercised,  in  local  districts,  there  have  been  some 
courts  that  have  denied  that  such  a  power  can  be 
delegated.  Oberholtzer, 2  the  leading  authority 
on  this  subject,  says  that  previous  to  1850,  eight 

1  26  Wisconsin,  291.  This  principle  is  discussed  also  by  Cooley 
(op.  cit.},  p.  137  el  seq.  This  author  also  gives  a  long  list  of 
citations  in  which  the  doctrine  is  upheld  beginning  with  the  case 
of  Brig  Aurora  v.  U.  S.,  7  Cranch,  p.  382. 

J  Op.  cit.,  chapter  xiii. 


220  Interpretation  of  Political  Theory 

opinions  had  been  delivered  in  which  the  validity 
of  the  local  referendum  was  involved. 

"Of  these  eight,  three  relate  to  the  prohibition 
of  the  liquor  traffic,  three  to  taxation  or  the  public 
subscription  of  stock  to  private  companies,  and 
two  to  other  questions  of  local  government.  In 
six  of  the  eight  cases  the  validity  of  this  method  of 
submitting  local  laws  to  popular  vote  was  affirmed, 
and  in  two,  both  cases  arising  out  of  local  option 
laws,  it  was  denied." 

This  author  says  that  since  1850  this  type  of 
legislation  has  been  denied  validity  in  only  four 
states.  These  are  Iowa,  Indiana,  California,  and 
Texas,  the  first-named  state  having  consistently 
denied  the  principle  in  a  long  line  of  decisions. 
In  concluding  his  chapter  on  the  constitutionality 
of  the  local  referendum,  Oberholtzer  makes  use 
of  the  following  language : 

"The  judges  pass  almost  imperceptibly  from 
one  to  the  other  [from  the  contingency  theory  to 
the  theory  that  the  municipality  is  a  mere  auxiliary 
to  the  state  Legislature  and  that  legislation  by  it 
is  not  a  re-delegation  of  law-making  power]  and 
whatever  their  own  individual  views  may  be  as  to 
the  law  in  the  case,  they  are  at  any  rate  compelled 
to  recognize  that  conditional  legislation  of  this 
kind  has  existed  in  all  parts  of  the  Republic  from 
the  foundation  of  the  government.  Whether 
there  is  in  a  strict  judicial  sense  justification  for  it 
or  not,  it  is  here  and  it  must  be  reckoned  with  as 
a  part  of  us.  A  great  weight  of  precedent  and, 
perhaps  other  important  considerations,  which  are 


The  Theory  of  Direct  Legislation  221 

not  empirical,  can  be  appealed  to  in  its  defence. 
The  town  meeting  and  the  referendum  are  factors 
in  the  American  system  of  local  government  which 
will  remain  with  us  long  after  the  jurist  has  ceased 
to  seek  the  grounds  for  these  interesting  political 
institutions." 

But  an  entirely  different  principle  applies  with 
reference  to  the  referendum  on  general  state  laws. 
In  the  previous  cases  cited  which  sustain  such 
laws,  we  find  that  the  constitutions  specially 
authorized  such  legislation.  It  seems  to  be  a  well- 
established  principle  of  American  law  that  unless 
there  is  expressed  constitutional  authority  for  the 
Legislature  to  delegate  the  law-making  power  to 
the  people  of  the  state,  no  such  power  can  exist. 
This  question  was  submitted  to  the  Supreme 
Court  of  Massachusetts  by  the  Legislature  of  that 
state,  and  the  majority  of  the  Court  was  of  the 
opinion  that  a  general  statute  submitted  to  the 
voters  of  the  state  was  unauthorized  by  law  and, 
therefore,  unconstitutional.  But  the  Court  in 
answer  to  another  question  propounded  by  the 
Legislature  at  the  same  time  relating  to  law- 
making  by  local  districts  answered  in  the  affirma- 
tive, expressing  the  opinion  that  in  general  such 
enactments  would  be  constitutional.  This  doubt- 
less will  eventually  become  the  generally  recog- 
nized doctrine  in  all  the  states  of  the  Union. 

One  other  question  suggests  itself  with  reference 
to  direct  legislation:  Does  it  in  practice  operate 
to  secure  representative  government?  Of  course, 


222    Interpretation  of  Political  Theory 

this  question  will  be  answered  in  opposite  ways  by 
the  advocates  and  opponents  of  this  method  of 
legislation,  but  a  brief  reference  to  these  opinions 
may  be  in  order. 

A  leading  paper  of  Portland,  Oregon,  *  which  was 
at  first  an  advocate  of  the  initiative  and  referen- 
dum, condemned  it  in  practice  in  the  following 
language : 

"It  was  not  intended  that  representative  gov- 
ernment should  be  abolished  by  the  new  system; 
but  it  has  been  abolished  by  it.  Any  group  of 
persons,  from  the  cave  of  Adullam,  or  other  groups 
of  persons  of  ill-arranged  intellects,  can  propose 
initiative  measures  or  call  the  referendum;  and 
there  is  danger  always  that  the  crudest  measures 
may  pass  into  law  through  the  inattention  of  the 
voters,  or  that  proper  legislative  measures  may 
be  turned  down  through  the  referendum.  .  .  . 
Representative  government  is  after  all,  a  pretty 
good  thing.  Oregon  will  yet  return  to  it." 

Professor  Stimson,  a  leading  authority  on  com- 
parative legislation,  and  an  instructor  in  this  field 
in  Harvard  University,  condemns  the  principle  of 
direct  legislation  in  the  following  words : 

"Direct  legislation,"  says  this  authority,  "has 
been  very  popular  as  a  political  slogan  during  the 
past  few  years,  but  it  has  not  been  adopted  as 
yet  in  any  of  the  thirteen  original  states.  The 
objections  to  it  are  fundamentally  that  it  destroys 
the  principle  of  representative  government;  that 
it  takes  responsibility  from  the  Legislature  with 

1  The  Oregonian. 


The  Theory  of  Direct  Legislation  223 

the  result,  probably,  of  getting  a  more  and  more 
inferior  type  of  man  as  state  representative;  that 
it  is  unnecessary,  inasmuch  as  any  one  may  have 
any  bill  introduced  in  the  Legislature  to-day,  and 
public  sentiment  be  effectual  to  prevent  the  bill 
from  being  defeated;  and  finally,  the  objection  of 
inconvenience,  that  it  is  cumbrous  and  unmanage- 
able to  work. " l 

In  opposition  to  these  opinions  we  have  that  of 
United  States  Senator  Jonathan  Bourne,2  himself 
a  Senator  from  Oregon.  In  discussing  popular 
government  in  Oregon,  he  says  that  his  state  "has 
evolved  the  best  known  system  of  popular  govern- 
ment" in  this  country. 

"The  initiative,"  says  he,  "develops  the  electo- 
rate, placing  directly  upon  them  the  responsibility 
for  legislation  enacted  under  its  provision;  the 
referendum  elevates  the  Legislature  because  of  the 
possibility  of  its  use  in  case  of  undesirable  legisla- 
tion. Brains,  ideas,  and  argument,  rather  than 
money,  intimidation,  and  log-rolling,  govern  the 
standards  of  legislation.  .  .  .  Results  obtained 
under  direct  legislation,  in  Oregon,  compare  so 
favorably  with  the  work  of  a  legislative  assembly 
that  an  effort  to  repeal  the  initiative  and  referen- 
dum would  be  overwhelmingly  defeated.  No 
effort  has  ever  been  attempted. " 

Mr.  Roosevelt  says3  that  "unquestionably  an 

1  Popular  Law-making,  p.  295. 

2  See  his  article  on  "Popular  Government  in  Oregon,"  in  the 
Outlook,  vol.  xcvi.,  p.  321,  also  Speech  U.  S.  Senate  on  May  5,  1910. 

*  "  Nationalism  and  Popular  Rule  "  in  the  Outlook,  vol.  xcvii., 
p.  96. 


224   Interpretation  of  Political  Theory 

ideal  representative  body  is  the  best  imaginable 
legislative  body,"  but  "I  believe,"  says  he,  "that 
it  would  be  a  good  thing  to  have  the  principle  of 
the  initiative  and  the  referendum  applied  in  most 
of  our  states.  ...  In  other  words,  if  the  Legisla- 
ture fails  to  act  one  way  or  the  other  on  some  bill 
as  to  which  there  is  a  genuine  popular  demand, 
then  there  should  unquestionably  be  power  in  the 
people  through  the  initiative  to  compel  such  action. 
Similarly,  on  any  bill  important  enough  to  arouse 
genuine  public  interest  there  should  be  power  for 
the  people  to  insist  upon  the  bill  being  referred  to 
popular  vote,  so  that  the  constituents  may  authori- 
tatively determine  whether  or  not  their  represen- 
tatives have  misrepresented  them." 

Mr.  Roosevelt  also  calls  attention  to  this  im- 
portant limitation  of  the  practice  of  direct  legisla- 
tion in  the  same  article:  "This,  of  course,  does 
not  necessarily  mean  that  the  principle  would 
work  equally  well  in  all  other  communities,  and 
under  our  system  it  is  difficult  to  see  at  present 
how  it  could  normally  have  more  than  state- wide 
application." 

The  advantages  and  disadvantages  of  the  sys- 
tem have  been  ably  summarized  by  Professor 
Gettell1  as  follows: 

"Among  the  advantages  of  direct  legislation 
may  be  noted: 

"  i .  The  people  may  force  action  upon  apathetic 
legislatures,  or  may  prevent  legislation  that  does 
not  reflect  the  wishes  of  the  community. 

1  Introduction  to  Political  Science,  p.  215. 


The  Theory  of  Direct  Legislation  225 

"  2.  The  people  are  less  likely  than  the  Legisla- 
ture to  be  improperly  influenced  or  to  hesitate  in 
opposing  certain  special  interests. 

"3.  Public  sentiment  is  awakened  and  interest 
in  government  stimulated  if  voters  have  questions 
of  importance  to  consider. 

"4.  The  local  referendum  may  adapt  general 
laws  to  the  needs  of  particular  localities. 

"Among  the  disadvantages  are: 

"i.  Voters  take  little  interest  in  such  elec- 
tions .  .  . 

"2.  The  referendum  destroys  the  sense  of 
responsibilities  of  legislatures  and  executives  .  .  . 

"3.  It  is  almost  impossible  to  frame  compli- 
cated statutes  concerning  economic  or  social  ques- 
tions in  such  a  way  that  a  simple  yes  or  no  will 
indicate  the  real  will  of  the  people." 

The  voters  of  the  various  states  have  practically 
become  a  fourth  department  of  government,  in 
which  the  functions  of  the  other  three  are  more  and 
more  coming  to  be  exercised.  The  oldest  function 
of  the  electorate  was  executive,  in  which  it  exer- 
cised the  power  to  elect  its  representatives ;  through 
the  initiative  and  the  referendum  it  is  now  exercis- 
ing in  larger  measure  the  function  of  legislation; 
and  in  the  proposed  theory  of  the  recall  of  judicial 
decisions,  the  electorate  will  become  in  some  im- 
portant respects  at  least  the  court  of  last  resort  in 
the  interpretation  of  our  laws.  The  following  and 
concluding  chapter  will  briefly  discuss  this  novel 
and  remarkable  theory. 

15 


CHAPTER  XI 

THE  THEORY  OF  THE  RECALL  OF  JUDICIAL  DECISIONS 

THE  theory  of  the  recall  of  decisions  may  be 
said  to  be  the  natural  result  of  more  than  a 
century's  teaching  by  the  courts  of  this  country 
that  they  possessed  the  power  to  declare  the  laws 
passed  by  the  state  and  national  legislatures  un- 
constitutional when  such  enactments  were  deemed 
to  be  in  conflict  with  the  organic  law  of  either  the 
state  or  the  Nation.  As  has  been  previously  shown 
this  doctrine  has  been  questioned  by  statesmen 
from  the  earliest  days  of  the  Republic.  Jefferson 
had  this  assumption  of  power  by  the  courts  in 
mind  when  he  used  the  following  language:  "The 
judiciary  of  the  United  States  is  the  subtle  corps 
of  sappers  and  miners  constantly  working  under- 
ground to  undermine  the  foundations  of  our 
confederated  fabric,"  and  Professor  Burgess  in 
discussing  this  doctrine  in  a  recent  work  speaks  of 
the  Supreme  Court  as  the  "aristocracy  of  the 
robe."1  It  has  been  a  popular  belief  throughout 
our  history  as  a  nation  that  the  power  of  the 
judiciary  to  annul  a  statute  on  the  grounds  of 
unconstitutionally  made  the  judiciary  not  a  co- 

1  Political  Science  and  Constitutional  Law,  vol.  ii.,  p.  365. 
226 


Recall  of  Judicial  Decisions       227 

ordinate  branch  of  government,  but  placed  the 
other  two  in  a  position  of  subordination  in  some 
respects  at  least.  To  escape  from  this  supremacy 
of  the  judiciary,  and  to  restore  the  coordination 
in  practice  as  the  fathers  had  decreed  in  theory 
has  been  under  consideration  at  various  times 
since  Marshall  first  laid  down  the  doctrine  in 
the  historic  decision  of  Marbury  v.  Madison  in 
1803. 

The  friends  of  the  recent  theory  of  the  recall  of 
judicial  decisions  claim  to  have  found  a  precedent 
for  such  a  theory  in  the  history  of  the  Eleventh 
Amendment  to  our  Federal  Constitution.  Before 
this  amendment  was  passed,  a  suit  was  brought 
by  an  individual  against  the  State  of  Georgia,  and 
the  Supreme  Court  promptly  held  that  such  a 
suit  could  be  maintained  in  the  courts  of  the 
United  States.  The  decision  aroused  opposition 
on  the  part  of  the  people,  and,  as  a  result,  the 
Eleventh  Amendment,  denying  this  power,  was 
duly  submitted  by  Congress  and  in  due  time 
(1788)  adopted  by  the  people. 

"This  amendment,"  it  is  stated  in  an  editorial 
in  the  Outlook,  "did  not  in  terms  alter  the  Consti- 
tution. It  simply  declared  that  the  Constitution 
should  not  be  construed  as  the  Supreme  Court  of 
the  United  States  had  construed  it.  And  in  sub- 
sequent proceedings  the  Supreme  Court  unani- 
mously recognized  the  right  of  the  people  to  adopt 
this  amendment,  and  so,  in  effect,  though  not  in 
form,  to  reverse  their  previous  decision.  In  fact, 


228  Interpretation  of  Political  Theory 

it  did  in  form  as  well  as  in  effect  reverse   their 
interpretation  of  the  Constitution."1 

This  view  is  practically  borne  out  by  Justice 
Bradley  in  a  reference  to  this  early  case  in  an 
opinion  delivered  by  him  in  the  case  of  Hans  v. 
Louisiana.  In  discussing  the  right  of  a  citizen 
to  sue  a  state,  he  said: 

"That  decision  was  made  in  the  case  of  Chisholm 
v,  Georgia  (2  Dallas,  419);  and  created  such  a 
shock  of  surprise  throughout  the  country  that, 
at  the  first  meeting  of  Congress  thereafter,  the 
Eleventh  Amendment  to  the  Constitution  was 
almost  unanimously  proposed,  and  was  in  due 
course  adopted  by  the  legislatures  of  the  states. 
This  amendment,  expressing  the  will  of  the  ulti- 
mate sovereignty  of  the  whole  country,  superior 
to  all  legislatures  and  all  courts,  actually  reversed 
the  decision  of  the  Supreme  Court.  It  did  not  in 
terms  prohibit  suits  by  individuals  against  the 
states,  but  declared  that  the  Constitution  should 
not  be  construed  to  import  any  power  to  authorize 
the  bringing  of  such  suits.  The  language  of  the 
amendment  is  that  'the  judicial  power  of  the 
United  States  shall  not  be  construed  to  extend 
to  any  suit  in  law  or  equity  commenced  or  prose- 
cuted against  one  of  the  United  States  by  citizens 
of  another  state,  or  by  citizens  or  subjects  of  any 
foreign  state. '  The  Supreme  Court  had  construed 
the  judicial  power  as  extending  to  such  a  suit,  and 
its  decision  was  thus  overruled.  The  Court  itself 
so  understood  the  effect  of  the  amendment  for 
after  its  adoption  Attorney-General  Lee,  in  the 
case  of  Hollingsworth  v.  Virginia  (3  Dallas,  378), 

1  Outlook,  vol.  ci.,  p.  59. 


Recall  of  Judicial  Decisions       229 

submitted  this  question  to  the  Court:  'Whether 
the  amendment  did  or  did  not  supersede  all  suits 
pending,  as  well  as  prevent  the  institution  of  new 
suits,  against  any  one  of  the  United  States  by 
citizens  of  another  State?'  Tilghman  and  Rawle 
argued  in  the  negative,  contending  that  the  juris- 
diction of  the  Court  was  unimpaired  in  relation  to 
all  suits  instituted  previous  to  the  adoption  of 
the  amendment.  But  on  the  succeeding  day  the 
Court  delivered  a  unanimous  opinion  that  'the 
amendment  being  constitutionally  adopted,  there 
could  not  be  exercised  any  jurisdiction  in  any  case, 
past  or  future,  in  which  a  State  was  sued  by  the 
citizens  of  another  State,  or  by  citizens  or  subjects 
of  any  foreign  state. '  " I 

Mr.  Roosevelt  stated  in  his  now  famous  speech 
before  the  Ohio  Constitutional  Convention  that 
Lincoln  advocated  this  doctrine  with  reference 
to  the  Dred  Scott  decision,  but  a  close  study  of 
the  words  of  Lincoln  does  not  seem  to  fully  justify 
this  conclusion.  The  words  of  Lincoln  referred  to 
by  Mr.  Roosevelt  occurred  in  a  speech  delivered 
at  Springfield,  Illinois,  on  June  26,  1857,  when 
this  language  was  used: 

"We  believe  as  much  as  Judge  Douglas — 
perhaps  more — in  obedience  to  and  respect  for 
the  judicial  department  of  government. 

"We  think  its  decisions  on  Constitutional  ques- 
tions, when  fully  settled,  should  control,  not  only 
the  particular  cases  decided,  but  the  general 
policy  of  the  country,  subject  to  be  disturbed  only 
by  amendments  to  the  Constitution  as  provided 

1  See  Outlook,  vol.  ci.,  p.  59. 


230  Interpretation  of  Political  Theory 

in  that  instrument  itself.     More  than  this  would 
be  revolution. 

"But  we  think  the  Dred  Scott  decision  to  be 
erroneous.  We  know  the  Court  that  has  made  it 
has  overruled  its  own  decisions,  and  we  shall  do 
what  we  can  to  have  it  overrule  this." 

It  is  difficult  to  read  into  these  words  the  theory 
of  the  recall  of  judicial  decisions  as  advocated  by 
Mr.  Roosevelt,  for  it  is  quite  clear  that  Mr. 
Lincoln  hoped  only  to  induce  the  Court  acting 
within  its  own  constitutional  prerogative  to  re- 
verse in  later  decisions  its  own  opinion  in  the  case 
referred  to. l  Lincoln  could  not  have  had  in  mind 
reversal  of  judicial  opinion  by  popular  election. 3 

The  recall  of  judges  is  the  last  step  in  the 
theory  of  the  recall  of  public  officials  which  was 
first  formally  advocated  by  the  "People's  Party." 
This  party  had  from  its  origin  advocated  direct 
legislation  through  the  initiative  and  the  referen- 
dum, but  in  its  platform  of  1900  it  went  a  step 
further  and  added  this  phrase  to  the  plank  con- 
cerning the  initiative  and  referendum  "and  to 
recall  unfaithful  public  servants."  This  theory 
gained  great  prominence  and  emphasis  in  each 
platform  and  campaign  of  this  party  from  that 
year  on.  The  theory  of  the  recall  of  judges  did 

1  The  views  of  Lincoln  on  this  subject  are  ably  presented  in 
a  chapter  on  "Lincoln  and  Judicial  Supremacy"  in  Haines' 
"  The  American  Doctrine  of  Judicial  Supremacy  "  (1913),  p.  204 
et  seq. 

3  See  views  of  Mr.  H.  W.  Stillman  expressed  in  Outlook,  vol. 
cii.,  p.  251. 


Recall  of  Judicial  Decisions       231 

not  become  a  vital  issue  until  Arizona  and  New 
Mexico  sought  admission  to  statehood  into  the 
Union.  The  resolution  that  was  submitted  to 
Congress  contained  an  amendment  to  the  Arizona 
constitution,  providing  for  the  recall  of  the  ju- 
diciary by  popular  vote,  and  this  provision  caused 
a  bitter  fight  to  be  made  on  the  resolution.  More 
than  a  score  of  the  leading  members  of  Congress 
took  part  in  the  debate.  Both  Democratic  and 
Republican  members  joined  in  condemning  the 
provision  of  the  Arizona  constitution  that  re- 
lated to  the  recall  of  the  judiciary.  Mr.  Samuel 
W.  McCall,  Republican  from  Massachusetts, 
declared  that  the  popular  recall  of  judges 
"would  not  only  in  the  long  run  result  in  the 
destruction  of  a  republican  form  of  government, 
but  would  be  entirely  subversive  of  civil  govern- 
ment." Mr.  Littleton,  Democrat  from  New 
York,  was  equally  vehement  in  opposition  to 
the  measure.  But  the  resolution  admitting 
Arizona  and  New  Mexico  to  statehood  was  finally 
adopted  on  May  23,  1911,  by  the  decisive  ma- 
jority of  214  to  57.  Many  of  those  who  were  op- 
posed to  the  recall  provision  finally  voted  for  the 
resolution. 

Many  of  the  most  thoughtful  men  of  the  Nation 
have  doubted  the  wisdom  of  the  recall  of  judges 
by  popular  vote.  Still  the  principle  has  gained 
rather  wide  application.  At  the  present  time 
Oregon,  California,  Arizona,  Arkansas,  Idaho,  and 
Nevada  have  a  state  wide  recall,  which  includes 


232  Interpretation  of  Political  Theory 

in  its  scope  every  public  official.  North  Dakota 
and  Wisconsin  have  passed  recall  amendments 
which  will  be  voted  on  at  an  early  date.  No 
practical  attempt  has  been  made  as  yet  to  recall 
a  judge,  but  that  we  will  have  such  a  recall  before 
a  great  while  is  almost  certain. 

Regardless  of  the  growing  popularity  of  the 
principle  of  the  recall,  and  especially  the  recall  of 
judges,  the  obvious  dangers  and  imperfections  of 
such  a  practice  has  caused  a  few  political  leaders 
to  seek  a  remedy  that  will  accomplish  the  same 
ends  without  at  the  same  time  encountering  the 
dangers  and  imperfections  incidental  to  the  recall 
system.  Mr.  Roosevelt  startled  the  country  early 
in  1912,  in  a  speech  of  unusual  interest,  by  pro- 
posing a  substitute  for  the  recall  of  judges  by 
popular  vote.  He  suggested  that  instead  of  re- 
calling the  judge,  whose  error  was  probably  of  the 
head  instead  of  the  heart,  that  the  people  by 
popular  vote  recall  the  decision  that  had  proved 
offensive  and  subversive  of  the  ends  of  social 
justice.  The  theory  is  so  novel  and  interesting 
as  to  justify  a  rather  extended  quotation  from  the 
speech  of  Mr.  Roosevelt. 

In  his  preliminary  discussion,  Mr.  Roosevelt 
defines  his  position  with  reference  to  the  recall  of 
judges: 

"I  do  not  believe  in  adopting  the  recall  [of 
judges]  save  as  a  last  resort,  when  it  has  become 
clearly  evident  that  no  other  course  will  achieve 
the  desired  result.  But  either  the  recall  will  have 


Recall  of  Judicial  Decisions       233 

to  be  adopted  or  else  it  will  have  to  be  made  much 
easier  than  it  now  is  to  get  rid,  not  merely  of  a  bad 
judge,  but  a  judge  who,  however  virtuous,  has 
grown  so  out  of  touch  with  social  needs  and  facts 
that  he  is  unfit  longer  to  render  good  service  on 
the  bench.  It  is  nonsense  to  say  that  impeach- 
ment meets  the  difficulty.  .  .  .  Impeachment  as 
a  remedy  for  the  ills  of  which  the  people  justly 
complain  is  a  complete  failure.  A  quicker,  a  more 
summary,  remedy  is  needed.  .  .  .  And  whenever 
it  be  found  in  actual  practice  that  such  remedy 
does  not  give  the  needed  results,  I  would  un- 
hesitatingly adopt  the  recall. 

"But  there  is  one  kind  of  recall  in  which  I  very 
earnestly  believe,  and  the  immediate  adoption 
of  which  I  urge.  .  .  .  When  a  judge  decides  a 
constitutional  question,  when  he  decides  what  the 
people  as  a  whole  can  or  cannot  do,  the  people 
should  have  the  right  to  recall  that  decision  if  they 
think  it  wrong.  .  .  .  What  the  Supreme  Court 
of  the  Nation  decides  to  be  law  binds  both  the 
national  and  the  state  courts,  and  all  the  people 
within  the  boundaries  of  the  Nation.  But  the 
decision  of  a  state  court  on  a  constitutional  ques- 
tion should  be  subject  to  revision  by  the  people 
of  the  state.  Again  and  again  in  the  past  justice 
has  been  scandalously  obstructed  by  state  courts 
declaring  state  laws  in  conflict  with  the  Federal 
Constitution,  although  the  Supreme  Court  of  the 
Nation  had  never  so  decided  or  had  even  decided 
in  a  contrary  sense.  When  the  Supreme  Court  of 
the  state  declares  a  given  statute  unconstitutional, 
because  in  conflict  with  the  state  or  the  national 
Constitution,  its  opinion  should  be  subject  to 
revision  by  the  people  themselves.  Such  an  opin- 
ion ought  always  to  be  treated  with  great  respect 
by  the  people,  and  unquestionably  in  the  majority 


234  Interpretation  of  Political  Theory 

of  cases  would  be  accepted  and  followed  by  them. 
But  actual  experience  has  shown  the  vital  need 
of  the  people  reserving  to  themselves  the  right  to 
pass  upon  such  opinion.  If  any  considerable 
number  of  the  people  feel  that  the  decision  is  in 
defiance  of  justice,  they  should  be  given  the  right 
by  petition  to  bring  before  the  voters  at  some 
subsequent  election,  special  or  otherwise,  as  might 
be  decided,  and  after  the  fullest  opportunity  for 
deliberation  and  debate,  the  question  whether  or 
not  the  judges'  interpretation  of  the  Constitution 
is  to  be  sustained.  If  it  is  sustained,  well  and 
good.  If  not,  then  the  popular  verdict  is  to  be 
accepted  as  final,  the  decision  is  to  be  treated  as 
reversed  and  the  construction  of  the  Constitution 
definitely  decided  subject  only  to  action  by  the 
Supreme  Court  of  the  United  States." 

The  announcement  and  formulation  of  the  doc- 
trine of  the  recall  of  judicial  decisions  as  in  the 
Columbus  speech  of  Mr.  Roosevelt  aroused  wide- 
spread interest  in  his  theory.  Newspapers  and 
public  men  throughout  the  country  discussed  the 
question  from  every  possible  view-point.  Many 
prominent  men  of  both  the  leading  parties  con- 
demned this  novel  scheme,  and  leading  newspapers 
both  partisan  and  independent,  declared  it  to  be 
visionary  and  impractical.  These  criticisms  caused 
Mr.  Roosevelt  to  reply  in  a  notable  address  de- 
livered at  Carnegie  Hall,  New  York  City,  under 
the  auspices  of  the  Civic  Forum,  on  the  evening 
of  March  20,  1912.  He  took  for  his  subject,  "The 
Right  of  the  People  to  Rule,"  and  devoted  much  of 
his  address  to  the  question  of  the  recall  of  judicial 


Recall  of  Judicial  Decisions       235 

decisions,  answering  especially  the  criticisms  of 
President  Taft.  In  order  to  make  his  position  as 
clear  as  possible  Mr.  Roosevelt  in  this  speech 
summarizes  his  position  in  the  following  words: 

(1)  "I  am  not  proposing  anything  in  connec- 
tion with  the  Supreme  Court  of  the  United  States, 
or  with  the  Federal  Constitution. 

(2)  "I  am  not  proposing  anything  having  any 
connection  with  ordinary  suits,  civil  or  criminal, 
as  between  individuals. 

(3)  "I  am  not  speaking  of  the  recall  of  judges. 

(4)  "I  am  proposing  merely  that  in  a  certain 
class  of  cases  involving  the  police  power,  when  a 
state  court  has  set  aside  as  unconstitutional  a  law 
passed  by  the  Legislature  for  the  general  welfare, 
the  question  of  the  validity  of  the  law, — which 
should  depend  as  Justice  Holmes  so  well  phrases 
it,  upon  the  prevailing  morality  of  preponderant 
opinion — be  submitted  for  final  determination  to 
a  vote  of  the  people,  taken  after  due  time  for 
consideration.    And  I  contend  that  the  people,  in 
the  nature  of  things,  must  be  better  judges  of 
what  is  the  preponderant  opinion  than  the  courts, 
and  that  the  courts  should  not  be  allowed  to 
reverse  the  political  philosophy  of  the  people." 

Mr.  Roosevelt  in  both  of  these  speeches — the 
Columbus  speech  and  the  Carnegie  Hall  speech — 
supported  his  unique  theory  with  some  rather 
remarkable  argument.  In  the  former  speech  he 
used  this  striking  line  of  thought. 

"Remember,  when  I  am  asking  the  people 
themselves  in  the  last  resort  to  interpret  the  law 


236  Interpretation  of  Political  Theory 

which  they  themselves  have  made,  that  after  all 
I  am  only  asking  that  they  step  in  and  authorita- 
tively reconcile  the  conflicting  decisions  of  the 
courts.  In  all  these  cases  the  judges  and  the 
courts  have  decided  every  which  way,  and  it  is 
foolish  to  talk  of  the  sanctity  of  a  judge-made  law 
which  half  the  judges  strongly  denounce.  If  there 
must  be  decision  by  a  close  majority,  then  let  the 
people  step  in  and  let  it  be  their  decision  that 
decides." 

The  opposition  that  developed  to  this  doctrine 
brought  out  some  interesting  comments.  Mr. 
Taft  condemned  the  doctrine  in  no  uncertain 
terms.  He  declared  that  such  a  theory  "is  utterly 
without  merit  or  utility,  and,  instead  of  being  .  .  . 
in  the  interest  of  all  the  people,  and  of  the  stability 
of  popular  government,  is  sowing  the  seed  of 
confusion  and  tyranny,"  and  again  in  a  striking 
passage  he  says  this  teaching  "lays  the  ax  at  the 
foot  of  the  tree  of  well-ordered  freedom,  and  sub- 
jects the  guarantees  of  life,  liberty,  and  property 
without  remedy  to  the  fitful  impulse  of  a  tempor- 
ary majority  of  an  electorate."  The  majority  of 
the  leading  members  of  the  Republican  party 
agreed  with  the  opposition  to  the  proposal  of  Mr. 
Roosevelt,  among  these  being  such  men  as  Senator 
Root,  Senator  Lodge,  and  Ex-Secretary  Nagle. 

But  after  the  split  in  the  Republican  party  at 
the  Chicago  Convention  in  1913,  and  the  forma- 
tion of  the  so-called  Progressive  Republican  party, 
the  line  was  clearly  drawn  on  the  issue  of  the 
theory  of  the  recall  of  judicial  decisions;  and  as 


Recall  of  Judicial  Decisions       237 

we  naturally  would  have  expected,  this  theory 
became  a  plank  in  the  Progressive  platform  when 
the  Progressives  met  at  Chicago  in  the  late 
summer  of  1912.  The  declaration  on  this  subject 
reads  as  follows : 

"The  Progressive  party  demands  such  restric- 
tions of  the  power  of  the  courts  as  shall  leave  to 
the  people  the  ultimate  authority  to  determine 
fundamental  questions  of  social  welfare  and  public 
policy.  To  secure  this  end  it  pledges  itself  to 
provide : 

(1)  "That  when  an  act  passed  under  the  police 
power  of  the  state  is  held  unconstitutional  under 
the  state  constitution  by  the  courts,  the  people, 
after  an  ample  interval  for  deliberation,  shall  have 
an  opportunity  to  vote  on  the  question  whether 
they  desire  the  act  to  become  law  notwithstanding 
such  decision. 

(2)  "That  every  decision  of  the  highest  ap- 
pellate court  of  a  state  declaring  an  act  of  the 
Legislature  unconstitutional  on  the  ground  of  its 
violation  of  fundamental  law  shall  be  subject  to 
the  same  review  by  the  Supreme  Court  of  the 
United  States  as  is  now  accorded  to  decisions 
sustaining  such  legislation." 

The  popular  review  of  judicial  decisions  on  laws 
for  securing  social  justice  became  an  important 
issue  in  their  campaign  before  the  people,  but  the 
regular  Republicans  and  the  Democrats  did  not 
take  the  issue  seriously,  and  both  devoted  most  of 
their  attention  to  questions  deemed  by  them  of 
more  immediate  concern  to  the  people. 


238  Interpretation  of  Political  Theory 

The  student  of  political  science  must  be  inter- 
ested in  the  real  merits  of  such  a  proposal  as  that 
presented  by  the  recall  of  judicial  decisions.  There 
have  been  very  few  judicial  discussions  presented 
on  the  merits  of  this  theory.  Most  of  the  ar- 
guments offered  and  the  views  expressed  are 
obviously  partisan  and  emanate  from  men  of  pro- 
nounced political  views  or  from  newspapers  that 
are  definitely  aligned  with  one  or  the  other  of  the 
leading  political  parties.  An  exception  to  this  is 
found  in  an  article  in  the  Atlantic1  on  "The 
Significance  of  the  Recall  of  Judicial  Decisions," 
by  Mr.  Karl  T.  Frederick  of  the  New  York  Bar. 
The  author  in  his  introduction  says,  "The  purpose 
of  the  writer  is  neither  to  defend  the  recall  of 
Judicial  Decisions,  nor  to  abuse  it,  but  rather  to 
examine  it,  and  to  get  at  its  more  important 
qualities  and  characteristics." 

In  this  article  this  proposal  is  compared  with 
that  of  the  recall  of  judges,  and  the  question  is 
asked:  "Is  it  a  genuine  correction  of  the  evil  it 
is  aiming  to  prevent?"  He  declares  that  it  is 
superior  to  the  recall  of  judges. 

"The  Recall  of  Decisions  is  in  these  respects 
undoubtedly  more  precise  and  effective.  The 
question  is  more  clear  cut  and  easily  understood. 
Shall  a  decision  nullify  a  particular  legislative  act 
upon  constitutional  grounds  and  remain  the  law, 
or  shall  it  be  in  substance  overruled?  The  ques- 

1  Vol  ex.,  p.  46  (issue  for  July,  1912). 


Recall  of  Judicial  Decisions       239 

tion  is  shifted  from  men  to  principles,  and  the 
issue  is  made  impersonal  and  concrete. " 

An  examination  of  the  question  on  its  merits 
leads  this  writer  to  the  conclusion  that  after  all, 
"Whether  the  Recall  of  Decisions  should  be 
adopted,  is,  like  most  other  political  questions, 
purely  one  of  expediency. " 

But  it  seems  that  the  theory  of  the  recall  of 
judicial  decisions  is  a  matter  of  more  serious  con- 
cern and  of  greater  importance  than  Mr.  Frederick 
would  have  us  believe.  Viewed  in  the  light  of  its 
historical  relations,  it  is  the  first  rational  expe- 
dient, if  it  be  an  expedient  at  all,  that  has  been 
offered  as  a  substitute  for  the  well-established 
doctrine  that  the  courts  have  the  power  to  declare 
statutes  unconstitutional,  and  in  opposition  to 
which  there  is  a  growing  sentiment  in  the  ranks 
of  American  citizens  of  all  political  faiths.  The 
conclusion  reached  by  Mr.  Harold  Remington1  in 
a  short,  but  forceful,  argument  in  favor  of  the 
theory  may  be  more  nearly  the  one  that  compre- 
hends the  significance  of  the  question :  ' '  Perhaps, " 
says  he,  "are  thus  to  be  solved  many  of  those 
grave  questions  looming  up  to  menace  our  future 
which  the  deplored  rigidity  of  our  American 
written  constitutions  has  made  us  fear  we  would 
not  solve  short  of  revolution  or  of  civil  war." 

That  this  new  and  novel  doctrine  will  yet  play 

1  See  The  American  Review  of  Reviews,  vol.  xlv.,  p.  567  (issue 
for  May,  1912). 


240  Interpretation  of  Political  Theory 

an  important  part  in  the  political  and  judicial 
history  of  our  country  can  hardly  be  doubted. 
It  may  not  be  adopted  in  the  form  that  it  has 
taken  in  the  hands  of  its  author  and  chief  defender, 
but  it  is  easy  to  see  that  it  must  offer  suggestions 
of  great  practical  importance  to  the  political  re- 
formers of  the  immediate  future,  and  it  is  not  an 
impossibility  that  it  may  be  tried  out  in  its 
present  form  in  some  progressive  state  of  the 
American  Union  before  another  national  cam- 
paign has  spent  its  force  and  accomplished  its 
victories  or  suffered  its  defeats. 


CHAPTER  XII 

CONCLUSION 

IT  is  an  interesting  fact  that  most  of  the  funda- 
mental questions  which  have  produced  a  dif- 
ference of  opinion  between  the  political  parties 
have  found  solution  in  the  Federal  courts.  Prac- 
tically the  only  important  question  that  was  not 
submitted  to  the  Supreme  Court  was  that  of 
internal  improvements,  and  the  issue  on  which  it 
was  contested  found  solution  in  similar  questions 
before  the  courts.  More  and  more  are  the  Ameri- 
can people  looking  to  the  Federal  courts  as  the 
final  arbiter  of  their  political  issues.  Their  willing- 
ness to  abide  their  decree  is  the  best  evidence  of 
the  supreme  confidence  that  is  imposed  in  these 
tribunals.  It  is  fortunate  that  this  confidence 
exists,  for  it  insures  the  country  against  riots  and 
civil  strife  resulting  from  heated  debate  and  party 
antagonisms. 

The  courts  have,  by  virtue  of  judicial  power  over 
statutes,  become  a  great  power  in  controlling  and 
extending  our  nationality.  The  courts  have  been 
able  to  settle  the  metes  and  bounds  of  practically 
every  issue  considered,  with  the  exception  of  that 
of  slavery.  Bryce  says,  that 
16  241 


242  Interpretation  of  Political  Theory 

"it  is  hardly  an  exaggeration  to  say  that  the 
American  Constitution  as  it  now  stands,  with  the 
mass  of  fringing  decisions  which  explain  it,  is  a 
far  more  complete  and  finished  instrument  than 
it  was  when  it  came  fire-new  from  the  hands  of  the 
Convention.  It  is  not  merely  their  work  but  the 
work  of  the  judges,  and  most  of  all  the  work  of  one 
man,  the  great  Chief  Justice  Marshall. " 

It  is  also  interesting  to  consider  the  important 
function  played  by  the  political  parties  of  this 
country.  We  have  come  almost  to  consider  them 
a  part  of  the  administrative  forces  of  our  govern- 
ment. The  extreme  idea  of  coordinating  the 
legislative  and  executive  departments  of  our  na- 
tional Government  has  made  the  harmony  between 
the  making  and  the  execution  of  the  law  very 
slight.  It  is  the  function  of  the  political  party  to 
produce  a  closer  harmony  between  these  two 
branches  of  our  Government.  Goodnow  says:1 

"  Owing  to  the  slight  control  which  the  Legisla- 
ture has  over  the  executive,  the  necessary  har- 
mony between  the  making  and  the  execution  of 
the  law  has  to  be  secured  outside  of  the  govern- 
mental system.  The  attempt  is  made  to  secure 
it  through  the  political  party  which,  as  a  result  of 
political  necessity,  has  obtained  during  our  century 
or  more  of  political  development  great  strength. " 

Further  on  in  the  same  chapter  this  author  says: 

"The   independence   of   the   executive,    which 

appears  so  great  upon  a  consideration  of  the  con- 

1  Principles  oj 'tine  Administrative  Law  oj  the  United,  States,  p.  48. 


Conclusion  243 

stitution,  disappears  when  we  consider  his  position 
from  the  point  of  view  of  actual  political  practice. 
The  needs  of  practical  political  life  take  from  the 
executive  his  independence,  and  render  him  re- 
sponsible to  an  extra-governmental  organization. 
This  is  the  administrative  side.  On  the  political 
side  the  parties  are  constantly  formulating  issues, 
creating  public  sentiment,  and  using  the  political 
machinery  to  carry  these  issues  into  laws." 

The  law  is  the  finished  product  from  the  political 
factory.  If  it  is  then  able  to  stand  the  test  of  the 
courts,  it  is  then  made  a  part  of  our  legal  equip- 
ment. "In  America,"  says  Bryce,  "the  govern- 
ment goes  for  less  than  in  Europe,  the  parties 
count  for  more.  The  great  moving  forces  are  the 
parties. "  When  we  consider  both  the  administra- 
tive and  political  functions  of  the  parties  in  this 
country,  the  truth  of  this  statement  is  most 
evident. 

There  has  been  a  striking  parallel  between  the 
functions  of  the  English  and  American  parties. 
According  to  Macaulay,1  modern  parties  in  Eng- 
land had  their  origin  in  1641,  when  the  English 
Parliament  was  considering  the  Great  Remon- 
strance to  Charles  I.  They  were  first  called 
"Roundheads"  and  "Cavaliers"  and  subsequently 
"Whigs"  and  "Tories."  In  generalizing  on  the 
basis  of  the  difference  between  them,  Macaulay 
says: 

"Everywhere  there  is  a  class  of  men  who  cling 

1  History  cj  England,  vol.  i.,  chapter  i. 


244  Interpretation  of  Political  Theory 

with  fondness  to  whatever  is  ancient,  and  who, 
even  when  convinced  by  overpowering  reasons 
that  innovations  would  be  beneficial,  consent  to 
it  with  many  misgivings  and  forebodings.  We 
find  also  everywhere  another  class  of  men,  san- 
guine in  hope,  bold  in  speculation,  always  pressing 
forward,  quick  to  discern  the  imperfections  of 
whatever  exists,  disposed  to  think  lightly  of  the 
risks  of  change,  and  disposed  to  give  every  change 
credit  for  being  an  improvement." 

This  contrast  is  a  rather  fair  characterization  of 
the  Democrats  on  the  one  hand,  and  the  Whigs 
and  the  Republicans  on  the  other.  The  Demo- 
crats have  clung  with  fondness  to  the  time-honored 
customs,  and  have  looked  on  most  changes  with 
"misgivings  and  forebodings."  The  Whigs  and 
their  successors  have  been  "disposed  to  think 
lightly  of  change,  and  they  have  been  disposed  to 
give  every  change  credit  for  being  an  improve- 
ment."  This  has  made  the  Whig  and  Republi- 
can parties  the  great  constructive  agencies,  while 
it  has  been  no  less  the  important  mission  of  the 
Democratic  party  to  compel  a  sufficient  degree  of 
conservatism  to  prevent  innovations  which  might 
prove  harmful. 

The  doctrine  of  strict  construction  has  been  the 
Democratic  weapon,  with  which  it  has  fought 
radicalism;  and  while  the  principle  of  loose  con- 
struction has  long  been  recognized,  as  has  been 
shown,  still  the  constant  appeal  of  the  Democratic 
party  to  strict  construction,  has  been  effective  in 
keeping  the  law  within  speaking  distance  of  the 


Conclusion  245 

Constitution.  The  doctrine  of  strict  construction 
was  the  principal  tenet  of  the  early  Republicans 
or,  as  they  were  sometimes  called,  Democratic- 
Republicans.  The  Federalists  of  Washington's 
administration  were  loose  constructionists.  We 
must  not  fall  into  the  error  of  supposing  that  the 
Republicans  were  simply  the  old  Anti-Federalists 
under  a  new  name;  or  that  the  Federalists  of 
Washington's  administration  were  the  same  as 
the  Federalists  of  an  earlier  date.  The  fact  is, 
that  with  the  actual  beginning  of  our  national 
existence,  a  general  reorganization  of  our  political 
parties  took  place.  For  instance,  Madison,  and 
other  strong  Federalists  of  1791,  in  Washington's 
administration  became  Republicans  with  Jefferson, 
and  the  advocates  of  strict  construction.  Many 
former  Federalists  aligned  themselves  with  the 
Republicans  in  opposing  the  financial  plans  of 
Hamilton.  From  that  time  on  the  Democratic 
party  has  adhered  to  strict  construction  as  a 
cardinal  principle. 

Woodburn *  finds  the  continuing  basis  of  division 
of  the  parties  in  constitutional  construction  and 
the  degree  of  centralization. 

"In  these  two  differences, — in  constitutional 
construction  and  in  the  differing  attitudes  of  the 
two  parties  toward  liberty  and  government, — 
writers  have  found  the  'continuing  basis  of  divi- 
sion' between  the  two  great  historic  parties  in 
America.  One  party,  known  by  its  several  names, 

1  Political  Parties  and  Party  Problems  in  the  United  States,  p.  20. 


246  Interpretation  of  Political  Theory 

Federalist,  Whig,  Republican,  has  favored  broad 
construction,  the  growth  of  national  power,  in- 
creasing functions  of  government,  the  larger  exer- 
cise of  force  and  authority  in  restraint  of  social 
disorders.  The  other  party,  under  its  various 
names  Anti-Federalist,  Democratic-Republican, 
has  held  to  strict  construction,  the  rights  of  the 
state  to  the  largest  degree  of  individual  and  social 
liberty,  without  annoyance  from  government.  The 
one  of  these  parties  has  been  called  the  party  of 
political  measures,  the  other  the  party  of  political 
principles.  The  one,  the  Federalist-Whig-Republi- 
can, were  the  advocates  of  governmental  schemes 
and  projects,  the  financial  plans  of  Hamilton, 
the  excise,  the  Alien  and  Sedition  Acts,  the  protec- 
tive policy,  internal  improvements,  Congressional 
restraint  of  slavery,  energetic  measures  in  prosecu- 
tion of  the  Civil  War  and  Congressional  Recon- 
struction. The  other  party,  from  its  principles 
of  attachment  to  individual  liberty  and  consti- 
tutional restraint  on  government,  has  usually 
opposed  these  measures  for  the  purpose  of  prevent- 
ing government  from  attempting  too  many  things 
on  behalf  of  the  people  and  for  the  purpose  of 
preventing  objectionable  measures  urged  on  behalf 
of  special  and  powerful  interests. " 

The  continuing  basis  of  division  is  described  by 
Bryce1  as  follows: 

"Two  permanent  oppositions  may  be  discerned 
running  through  the  history  of  the  parties,  some- 
times openly  recognized,  sometimes  concealed  by 
the  urgency  of  a  transitory  question.  One  of 
these  is  the  opposition  between  a  centralized  or 

1  American  Commonwealth  (Abridged  Edition),  p.  464. 


Conclusion  247 

unitary  and  a  federalized  government.  State  au- 
tonomy was  the  watchword  of  the  Democratic 
party.  The  wish  to  increase  the  range  and  force 
of  the  national  Government,  seldom  distinctly 
avowed,  was  generally  in  fact  represented  by  the 
Federalists  of  the  first  period,  the  Whigs  of  the 
second,  the  Republicans  of  the  third.  The  other 
opposition,  though  it  goes  deeper  and  is  more 
pervasive,  has  been  less  clearly  marked  in  Amer- 
ica, and  less  consciously  admitted  by  the  Ameri- 
cans themselves.  It  is  the  opposition  between  the 
tendency  which  makes  some  men  prize  the  free- 
dom of  the  individual  as  the  first  of  social  goods, 
and  that  which  disposes  others  to  insist  on  check- 
ing and  regulating  his  impulses.  The  opposition 
of  these  two  tendencies — love  of  liberty  and  love 
of  order — is  permanent  and  necessary,  because  it 
springs  from  differences  in  intellect  and  feelings  of 
men  which  appear  in  all  countries  and  at  all 
epochs." 

The  party  history  of  this  country  may  be 
roughly  divided  into  four  periods.  I.  The  first 
period  from  1787  to  1789.  The  short  period  of  the 
Federalists  and  the  Anti-Federalists  in  which  the 
Constitution  itself  was  really  the  platform  of  one 
of  the  parties.  "On  the  one  side  was  arrayed 
those  who  believed  in  a  strong  central  govern- 
ment ;  against  them  were  pitted  those  who  believed 
that  their  well  tried  local  and  state  governments 
were  in  danger."1 

2.  The  second  period  from  1789  to  1832.  This 
period  was  one  of  origins.  It  saw  the  beginning 

1  See  Macy's  Political  Parties  in  the  United  States,  p.  46. 


248  Interpretation  of  Political  Theory 

of  the  tariff  issue,  the  conflict  over  the  national 
bank,  and  internal  improvements.  It  witnessed 
the  destruction  of  the  Federalist  party  and  the 
rise  of  personal  politics  with  the  personality  of 
Clay  and  Adams  in  conflict  with  the  intense 
personality  of  Jackson. 

3.  The  third  period  from  1832  to  1856.     This 
period  is  coexistent  with  the  life  history  of  the 
Whigs.     This  party  had  its  origin  in  opposition 
to  the  Jacksonian  Democrats,  who  were  the  strict 
adherents   to   the  principles   of  Jefferson.     The 
issues  of  the  periods  were   the   Second   United 
States  Bank,  the  Tariff,  Internal  Improvements, 
the  sub-treasury  during  the  latter  part  of  the 
period,  and  the  Executive  Veto.    The  fundamen- 
tal issues  were  inherited  from  the  preceding  period. 

4.  The  fourth  period  from  1856  to  1860.    The 
period  that  brought  the  abolition  and  free  soil 
elements  together  into  the  newly  formed  Republi- 
can party  on  the  single  issue  of  slavery. 

5.  The  fifth  period  from  1860  to  1876.     The 
period  of  war  measures  and  reconstruction.    The 
period  was  one  in  which  the  problems  of  finance 
were  the  most  perplexing.    The  solution  was  found 
in  a  continuation  of  the  protective  tariff,  income 
tax,  and  legal  tender.    The  period  was  marked  by 
a   large   extension   of   nationality,    as   has   been 
shown. 

6.  The  sixth  period  from  1876  to  the  present 
time.    The  issues  between  the  two  dominant  parties 
have  not  been  so  clearly  drawn  during  this  period. 


Conclusion  249 

The  public  questions  have  related  to  the  tariff, 
reform  in  the  governmental  service,  the  monetary 
question,  imperialism,  and  the  control  of  the 
trusts.  The  only  important  constitutional  issues 
are  those  relating  to  the  trusts  and  imperialism. 
The  creation  of  the  Interstate  Commerce  Com- 
mission by  Congress  and  the  Anti-Trust  Act, 
known  as  the  Sherman  Act,  and  the  recognition  of 
these  acts  as  constitutional  by  the  Supreme  Court 
has  eliminated  the  trust  as  an  issue.  The  tariff 
laws  with  reference  to  our  insular  possessions  and 
the  attitude  of  the  courts  with  reference  to  these 
laws  have  almost  eliminated  this  question  also 
from  the  realm  of  political  controversy.  How- 
ever, there  will  doubtless  be  other  questions  of  a 
fundamental  nature  to  arise  with  reference  to  the 
Philippines,  and  perhaps  in  connection  with  Porto 
Rico,  which  will  produce  intense  party  differences 
for  many  years  to  come. 

An  examination  of  the  scope  and  nature  of  the 
problems  which  have  been  considered,  forces  the 
conclusion  that  most  of  the  fundamental  problems 
and  questions  relating  to  our  national  existence 
and  fundamental  law  have  found  final  solution. 

"The  Constitution  of  the  United  States,  in  its 
principles  and  in  its  main  features,  is  no  longer  the 
subject  of  controversy,  of  debate,  or  of  doubt. 

"The  line  of  sovereignty  in  the  states  and  the 
nature,  extent,  and  limits  of  the  sovereignty  of 
the  national  Government  have  been  distinctly 
marked ;  and  thus  the  gravest  questions  that  have 


250  Interpretation  of  Political  Theory 

arisen  under  the  Constitution — questions  that  dis- 
turbed the  harmony  and  threatened  the  existence 
of  the  Union — have  passed  from  the  field  of 
debate  into  the  realm  of  settled  law."1 

1  Preface  to  Boutwell's  The  Constitution  of  the  United  States  at 
the  end  of  the  First  Century. 


APPENDICES 

PARTY   PRINCIPLES   ON   NATIONAL  ISSUES1 
A 

JUDICIAL   POWER  OVER   LEGISLATIVE   ENACTMENTS 

Ultimate  Jurisdiction  of  Su- 
preme Court  Recognized. 

"Resolved,  That  the  Su- 
preme Court  of  the  United 
States  is  the  only  tribunal 
recognized  by  the  Constitution 
for  deciding  in  the  last  resort 
all  questions  arising  under  the 
Constitution  and  laws  of  the 
United  States,  and  that  upon 
the  preservation  of  the  au- 
thority and  jurisdiction  of 
that  court  inviolate  depends 
the  existence  of  the  nation. " 
Fourth  resolution  of  the 
National  Republican  Conven- 
tion of  1832.* 

"Resolved,  That  the  Demo- 
cratic party  will  abide  by  the 
decisions  of  the  Supreme 
Court  of  the  United  States  on 
the  questions  of  constitutional 
law."  Second  resolution  of 
the  Democratic  Platform  of 
1860. 

1  The  positive  views  have  been  placed  on  the  left  and  the  negative  views 
on  the  right,  without    regard  to    the  party   holding    them.      It    is  hoped 
in  this  way  to  give  emphasis  to  the  great  assertive  principles  of  all  parties. 

2  Previous  to  1832  no  national  conventions  were  held  and  no  party  plat- 
forms issued. 

251 


252  Appendix  B 

B 

THEORY   OF   CONSTITUTIONAL   CONSTRUCTION 

Strict  Construction  Advocated. 

"Resolved,  That  the  Fed- 
eral government  is  one  of 
limited  powers,  derived  solely 
from  the  Constitution,  and  the 
grants  of  power  shown  therein 
ought  to  be  strictly  construed 
by  all  the  departments  and 
agents  of  the  government,  and 
that  it  is  inexpedient  and  dan- 
gerous to  exercise  doubtful 
constitutional  powers."  First 
resolution  of  the  Democratic 
Platform  of  1840,  and  reaf- 
firmed in  exactly  the  same 
language  in  the  Democratic 
Platforms  of  1844,  1848,  and 
1852. 

"The  Government  of  the 
United  States  is  of  a  limited 
character,  and  is  confined  to 
the  exercise  of  powers  expressly 
granted  by  the  Constitution,  and 
such  as  may  be  necessary  and 
proper  for  carrying  the  granted 
powers  into  full  execution,  and 
that  powers  not  granted  or 
necessarily  implied  are  re- 
served to  the  states  respec- 
tively and  to  the  people. " 
First  declaration  of  the  Whig 
Platform  of  1852. 

"Resolved,  That  all  govern- 
mental powers,  whether  state 
or  federal,  are  trust  powers 
coming  from  the  people  of 
each  state,  and  that  they  are 
limited  to  the  written  letter  of 
the  Constitution  and  the  laws 
passed  in  the  pursuance  of  it; 
which  powers  must  be  exer- 
cised in  the  utmost  good  faith, 
the  Constitution  itself  stating 


Appendix  C 


253 


in  what  manner  they  may  be 
altered  and  amended."  Sec- 
ond resolution  of  the  Demo- 
cratic Platform  of  1872. 


THEORY  OF  THE  FEDERAL  UNION 

Union  a  Nation,  not  a  League.          Opposition  to  Centralization. 


'The  federal  and  state  gov- 
ernments are  parts  of  one 
system,  alike  necessary  for  the 
common  prosperity,  peace,  and 
security,  and  ought  to  be  re- 
garded alike  with  a  cordial, 
habitual,  and  immovable  at- 
tachment. Respect  for  the 
authority  of  each,  and  ac- 
quiescence in  the  just  constitu- 
tional measures  of  each,  are 
duties  required  by  the  plain- 
est considerations  of  national, 
state,  and  individual  welfare. " 
Whig  Platform  of  1852. 

"  The  United  States  of  Amer- 
ica is  a  nation,  not  a  league. 
By  the  combined  workings  of 
the  national  and  state  govern- 
ments, under  their  respective 
constitutions,  the  rights  of 
every  citizen  are  secured,  at 
home  and  abroad,  and  the 
common  welfare  promoted. " 
Section  I  of  the  Republican 
Platform  of  1876. 

"The  Constitution  of  the 
United  States  is  a  supreme 
law,  and  not  a  mere  contract. 
Out  of  confederated  states  it 
made  a  sovereign  nation.  Some 
pqwers  are  denied  to  the  na- 
tion, while  others  are  denied 
to  the  states;  but  the  boundary 


"Resolved,  That  the  origi- 
nal basis  of  our  whole  political 
structure  is  consent  in  every 
part  thereof.1  The  people  of 
each  state  voluntarily  created 
their  state,  and  the  states 
voluntarily  formed  the  Union; 
and  each  state  provided  by  its 
written  constitution  for  every- 
thing a  state  could  do  for  the 
protection  of  life,  liberty,  and 
property  within  it;  and  each 
state,  jointly  with  the  others, 
provided  a  federal  union  for 
foreign  and  interstate  rela- 
tions." First  resolution  of 
the  (Straight-Out)  Democratic 
Platform  of  1872. 

"  Opposition  to  centraliza- 
tion and  to  that  dangerous 
spirit  of  encroachment  which 
tends  to  consolidate  the  pow- 
ers of  all  the  departments  in 
one,  and  thus  to  create,  what- 
ever be  the  form  of  gov- 
ernment, a  real  despotism." 
Section  2  of  the  Democratic 
Platform  of  1880. 

"We  believe  ...  a  return 
to  the  fundamental  principles 
of  a  free  popular  government, 
based  on  home  rule  and  indi- 
vidual liberty,  was  never  more 
urgent  than  now,  when  the 


'See  also  the  Virginia  and  Kentucky  Resolutions  (1798  and  1799)  pre- 
pared by  Madison  and  Jefferson,  the  leaders  of  the  Republican  party. 
These  resolutions  have  been  called  the  first  party  platform  in  America. 


254 


Appendix  D 


between  the  powers  delegated 
and  those  reserved  is  to  be 
determined  by  the  national 
and  not  by  the  state  tribunal. " 
Section  2  of  the  Republican 
Platform  of  1880. 

"The  people  of  the  United 
States,  in  their  organized  ca- 
pacity, constitute  a  nation, 
and  not  an  American  federacy 
of  states.  The  national  gov- 
ernment is  supreme  within  the 
sphere  of  its  national  duties; 
but  the  states  have  reserved 
rights  which  should  be  faith- 
fully maintained.  Each  should 
be  guarded  with  jealous  care, 
so  that  the  harmony  of  our 
system  of  government  may  be 
preserved  and  the  Union  kept 
inviolate."  Republican  Plat- 
form of  1884. 


tendency  to  centralize  all  pow- 
er at  the  federal  capital  has 
become  a  menace  to  the 
reserved  rights  of  the  states 
that  strikes  at  the  roots  of 
our  government,  under  the 
Constitution  as  framed  by 
the  fathers  of  the  republic." 
Section  i  of  the  Democratic 
Platform  of  1892. 


IMPERIALISM  V.  EXPANSION 


Opposition  to  Imperialism. 

"We  hold  that  the  Constitu- 
tion follows  the  flag,  and  de- 
nounce the  doctrine  that  an 
executive  or  Congress  deriving 
their  existence  and  their  pow- 
ers from  the  Constitution  can 
exercise  lawful  authority  be- 
yond it  or  in  violation  of  it. 

"We  assert  that  no  nation 
can  long  endure  half  republic 
and  half  empire,  and  we  warn 
the  American  people  that  im- 
perialism abroad  will  lead 
quickly  and  inevitably  to 
despotism  at  home. 

"We  are  not  opposed  to 
territorial  expansion  when  it 
takes  in  desirable  territory 
which  can  be  erected  into 
states  in  the  Union,  and  whose 


Control  of  Non-Contiguous 
Territory  Favored. 

"Our  foreign  policy  should 
be  at  all  times  firm,  vigorous, 
and  dignified,  and  all  our  in- 
terests in  the  Western  Hemi- 
sphere carefully  watched  and 
guarded.  The  Hawaiian  Is- 
lands should  be  controlled  by 
the  United  States,  and  no 
foreign  power  should  be  per- 
mitted to  interfere  with  them. " 
Republican  Platform  of  1896. 

"We  approve  the  annexa- 
tion of  the  Hawaiian  Islands 
to  the  United  States."  Re- 
publican Platform  of  1900. 

"  In  accepting,  by  the  Treaty 
of  Paris,  the  just  responsibility 


Appendix  D 


255 


people  are  willing  and  fit  to 
become  American  citizens.  We 
favor  expansion  by  every  peace- 
ful and  legitimate  means.  But 
we  are  unalterably  opposed  to 
seizing  or  purchasing  distant 
lands  to  be  governed  outside 
the  Constitution,  and  whose 
people  can  never  become  citi- 
zens."  The  "paramount  is- 
sue" in  the  Democratic  Plat- 
form of  1900. 

"We  favor  the  preservation, 
so  far  as  we  can,  of  an  open 
door  for  the  world's  commerce 
in  the  Orient,  without  an  un- 
necessary entanglement  in  Ori- 
ental and  European  affairs, 
and  without  arbitrary,  un- 
limited, irresponsible,  and  ab- 
solute government  anywhere 
within  our  jurisdiction.  We 
oppose,  as  fervently  as  did 
George  Washington  himself, 
an  indefinite,  irresponsible,  dis- 
cretionary, and  vague  absolu- 
tism and  a  policy  of  Colonial 
exploitation,  no  matter  where 
or  by  whom  invoked  or  exer- 
cised. We  believe,  with 
Thomas  Jefferson  and  John 
Adams,  that  no  government 
has  a  right  to  make  one  set  of 
laws  for  those  'at  home'  and 
another  and  a  different  set  of 
laws,  absolute  in  their  charac- 
ter, for  those  '  in  the  colonies. ' 
All  men  under  the  American 
flag  are  entitled  to  the  protec- 
tion of  the  institutions  whose 
emblem  the  flag  is.  If  they 
are  inherently  unfit  for  those 
institutions,  then  they  are 
inherently  unfit  to  be  members 
of  the  American  body  politic. 
Wherever  there  may  exist  a 
people  incapable  of  being  gov- 
erned under  American  laws, 
in  consonance  with  the  Ameri- 


of  our  victories  in  the  Spanish 
war,  the  President  and  the 
Senate  won  the  undoubted 
approval  of  the  American 
people.  No  other  course  was 
possible  than  to  destroy 
Spain's  sovereignty  through- 
out the  West  Indies  and  in 
the  Philippine  Islands.  That 
course  created  our  responsibil- 
ity before  the  world  and  with 
the  unorganized  population 
whom  our  intervention  had 
freed  from  Spain,  to  provide 
for  the  maintenance  of  law 
and  order,  and  for  the  estab- 
lishment of  good  government, 
and  for  the  performance  of 
international  obligations. 

"Our  authority  could  not 
be  less  than  our  responsibility, 
and  wherever  sovereign  rights 
were  extended  it  became  the 
high  duty  of  the  government 
to  maintain  its  authority,  to 
put  down  armed  insurrection, 
and  to  confer  the  blessings  of 
liberty  and  civilization  upon 
all  the  rescued  peoples."  Re- 
publican Platform  of  1900. 


256 


Appendix  E 


can  Constitution,  the  territory 
of  that  people  ought  not  to  be 
a  part  ot  the  American  domain. 
"We  insist  that  we  ought  to 
do  for  the  Filipinos  what  we 
have  done  already  for  the 
Cubans,  and  it  is  our  duty  to 
make  that  promise  now,  and 
upon  suitable  guarantees  of 
protection  to  citizens  of  our 
own  and  other  countries  resi- 
dent there  at  the  time  of  our 
withdrawal,  set  the  Philippine 
people  upon  their  feet,  free  and 
independent  to  work  out  their 
own  destiny. "  Democratic 
Platform  of  1904. 


E 


THE  THEORY   OF   INTERNAL    IMPROVEMENT 

Congressional  Power  Upheld.          Congressional  Power  Denied, 


"Resolved,  That  a  uniform 
system  of  internal  improve- 
ments, sustained  and  sup- 
ported by  the  general  govern- 
ment, is  calculated  to  secure, 
in  the  highest  degree,  the  har- 
mony, the  strength,  and  the 
permanency  of  the  republic." 
Third  resolution  in  the  Plat- 
form of  the  National  Republi- 
can party  of  1832. 

"Resolved,  That  river  and 
harbor  improvements,  when 
demanded  by  the  safety  and 
convenience  of  commerce  with 
foreign  nations,  or  among  the 
several  states,  are  objects  of 
national  concern,  and  that  it 
is  the  duty  of  Congress,  in  the 
exercise  of  its  constitutional 
power,  to  provide  therefor." 
Thirteenth  resolution  of  the 
Platform  of  the  Free-Soil  party 
of  1848. 


"Resolved,  That  the  Con- 
stitution does  not  confer  upon 
the  general  government  the 
power  to  commence  and  carry 
on  a  general  system  of  internal 
improvements. "  Democratic 
Platform  of  1840,  and  re- 
affirmed in  each  succeeding 
Platform  of  this  party  untu 
1856. 


Appendix  F  257 


"Resolved,  That  appropria- 
tions by  Congress  for  the  im- 
provement of  rivers  and  har- 
bors of  a  national  character, 
required  for  the  accommoda- 
tion and  security  of  our  exist- 
ing commerce,  are  authorized 
by  the  Constitution  and  justi- 
fied by  the  obligations  of  the 
government  to  protect  the 
lives  and  property  of  its  citi- 
zens." Republican  Platform 
of  1856. 


THE   THEORY   OF   A   UNITED   STATES   BANK 

Congressional  Power  Denied. 

"Resolved,  That  Congress 
has  no  power  to  charter  a 
United  States  Bank;  that  we 
believe  such  an  institution  one 
of  deadly  hostility  to  the  best 
interests  of  the  country,  dan- 
gerous to  our  republican  insti- 
tutions and  the  liberties  of  the 
people,  and  calculated  to  place 
the  business  of  the  country 
within  the  control  of  a  concen- 
trated money  power  and  above 
the  laws  and  the  will  of  the 
people."  Resolution  number 
6  of  the  Democratic  •  Plat- 
form of  1840,  and  reaffirmed 
in  the  Platform  of  1844. 

To  the  above  was  added  the 
following  in  the  Democratic 
Platform  of  1856:  "and  that 
the  results  of  Democratic  le- 
gislation in  this  and  all  other 
financial  measures  upon  which 
issues  have  been  made  between 
the  two  political  parties  of  the 
country  have  demonstrated  to 
candid  and  practical  men  of 
all  parties,  their  soundness, 
safety,  and  utility  in  all  busi- 
ness pursuits." 


258 


Appendix  G 


THE  THEORY  OF  LEGAL  TENDER 


Congressional  Power  Upheld.          Congressional  Power  Denied. 


"Resolved,  That  these  prin- 
ciples may  be  summarized  as 
follows:  A  well-regulated  cur- 
rency, etc. "  From  Whig  Plat- 
form of  1844. 

"Resolved,  .  .  .  that  it  is 
the  duty  of  every  loyal  state  to 
sustain  the  credit  and  pro- 
mote the  use  of  the  national 
currency."  Republican  [Reg- 
ular] Platform  of  1864. 

"A  uniform  national  cur- 
rency has  been  provided,  re- 
pudiation frowned  down,  the 
national  credit  sustained  under 
the  most  extraordinary  bur- 
dens, and  new  bonds  negotiated 
at  lower  rates."  Republican 
Platform  of  1872. 

"The  right  to  make  and 
issue  money  is  a  sovereign 
power,  to  be  maintained  by 
the  people  for  their  common 
benefit.  The  delegation  of 
this  right  to  corporations  is  a 
surrender  of  the  central  attri- 
bute of  sovereignty,  void  of 
constitutional  sanction,  and 
conferring  upon  a  subordinate 
and  irresponsible  power  an 
absolute  dominion  over  indus- 
try and  commerce.  All  money, 
whether  metallic  or  paper, 
should  be  issued,  and  its 
volume  controlled,  by  the  gov- 
ernment, and  not  by  or  through 
banking  corporations ;  and 
when  so  issued,  should  be  a 
full  legal  tender  for  all  debts 
public  and  private. "  Green- 
back Platform  of  1880. 


"We  declare  unqualified  hos- 
tility to  bank  notes  and  paper 
money  as  a  circulating  medium, 
because  gold  and  silver  is  the 
only  safe  and  constitutional 
currency."  From  the  Dec- 
laration of  the  Democrats  of 
New  York,  in  1836,  which  was 
generally  accepted  as  a  na- 
tional party  declaration. 

"One  currency  for  the  gov- 
ernment and  the  people,  the 
laborer  and  the  officeholder, 
the  pensioner  and  the  soldier, 
the  producer  and  the  bond- 
holder." Democratic  Plat- 
form of  1868. 

"A  speedy  return  to  specie 
payment  is  demanded  alike 
by  the  highest  considerations 
of  commercial  morality  and 
honest  government."  Liberal 
Republican  Platform  of  1872. 

"Reform  is  necessary  to 
establish  a  sound  currency, 
restore  the  public  credit,  and 
maintain  the  national  honor." 
Democratic  Platform  of  1876. 

"We  believe  in  honest 
money,  the  gold  and  silver  of 
the  Constitution,  and  a  circu- 
lating medium  convertible  into 
such  money  without  loss." 
Democratic  Platform  of  1884. 

"Congress  alone  has  the 
power  to  coin  and  issue  money 
and  President  Jackson  de- 
clared that  this  power  could 
not  be  delegated  to  corpora- 


Appendix  H 


259 


"That  we  hold  the  late  de- 
cision of  the  Supreme  Court 
on  the  legal  tender  question 
to  be  a  full  vindication  of  the 
theory  which  our  party  has 
always  advocated  on  the  right 
and  authority  of  Congress  over 
the  issue  of  legal-tender  notes, 
and  we  hereby  pledge  our- 
selves to  uphold  said  decision, 
and  to  defend  the  Constitution 
against  alterations  or  amend- 
ments intended  to  deprive  the 
people  of  any  rights  or  privi- 
leges conferred  by  that  instru- 
ment. .  .  .  We  demand  the 
substitution  of  greenbacks  for 
national-bank  notes,  and  the 
prompt  payment  of  the  public 
debt.  We  want  that  money 
which  saved  our  country  in 
time  of  war  and  which  has 
given  it  prosperity  and  happi- 
ness in  peace. "  Greenback 
Platform  of  1884. 


tions  or  individuals.  We  there- 
fore denounce  the  issuance  of 
notes  intended  to  circulate  as 
money  by  national  banks  as 
in  derogation  of  the  Constitu- 
tion, and  we  demand  that  all 
paper  which  is  made  a  legal 
tender  for  public  and  private 
debts,  or  which  is  receivable 
for  dues  to  the  United  States, 
shall  be  issued  by  the  govern- 
ment of  the  United  States, 
and  shall  be  redeemable  in 
coin."  Democratic  Platform 
of  1896. 


THE   THEORY   OF   A    PROTECTIVE   TARIFF 


Protection  Favored. 

"An  adequate  protection  to 
American  industry  is  indispen- 
sable to  the  prosperity  of  the 
country;  and  that  an  abandon- 
ment of  the  policy  at  this 
period  would  be  attended  with 
consequences  ruinous  to  the 
best  interests  of  the  nation." 
Republican  Platform  of  1832. 

"The  revenue  necessary  for 
current  expenditures  and  the 
obligations  of  the  public  debt 
must  be  largely  derived  from 
duties  upon  importations, 
which,  as  far  as  possible, 
should  be  adjusted  to  promote 
the  interests  of  American  labor 


Tariff  for  Revenue  Only. 

"That  justice  and  sound 
policy  forbid  the  federal  gov- 
ernment to  foster  one  branch 
of  industry  to  the  detriment 
of  another,  or  to  cherish  the 
interests  of  one  portion  to  the 
injury  of  another  portion  of 
our  common  country. "  Dem- 
ocratic Platform  of  1840. 

"A  tariff  for  revenue  to  de- 
fray the  necessary  expenses  of 
the  government."  From  the 
summary  of  the  principles  of 
the  Whig  Platform  of  1844. 

"That  we  favor  a  judicious 
tariff  for  revenue  purposes  only, 


260 


Appendix  H 


and  advance  the  prosperity  of 
the  whole  country. "  Repub- 
lican Platform  of  1876. 

"We  therefore  demand  that 
the  imposition  of  duties  on 
foreign  imports  shall  be  made 
not  for  'revenue  only,'  but 
that  in  raising  the  requisite 
revenues  for  the  government 
such  duties  shall  be  so  levied 
as  to  afford  security  to  our 
diversified  industries  and  pro- 
tection to  the  rights  and  wages 
of  the  laborer,  to  the  end  that 
active  and  intelligent  labor, 
as  well  as  capital,  may  have 
its  just  rewards,  and  the  labor- 
ing man  his  full  share  in  the 
national  prosperity. "  Repub- 
lican Platform  of  1884. 

"We  are  uncompromisingly 
in  favor  of  the  American  sys- 
tem of  protection;  we  protest 
against  its  destruction  as  pro- 
posed by  the  President  and  his 
party.  They  serve  the  inter- 
ests of  Europe;  we  will  support 
the  interests  of  America.  We 
accept  the  issue  and  confi- 
dently appeal  to  the  people  for 
their  judgment.  The  protec- 
tive system  must  be  main- 
tained. Its  abandonment  has 
always  been  followed  by  gen- 
eral disaster  to  all  interests, 
except  those  of  the  usurer  and 
the  sheriff.  We  denounce  the 
Mills  Bill  as  destructive  to 
the  general  business,  the  labor, 
and  the  farming  interests  of 
the  country,  and  we  heartily 
indorse  the  consistent  and 
patriotic  action  of  the  Republi- 
can representatives  in  Congress 
in  opposing  its  passage. "  Re- 
publican Platform  of  1888. 

"We  reaffirm  the  American 
doctrine  of  protection.  We 


and  that  we  are  unalterably 
opposed  to  class  legislation 
which  enriches  a  few  at  the 
expense  of  many,  under  the 
plea  of  protection."  Demo- 
cratic Platform  of  1872. 

"Congress  should  modify 
the  tariff  so  as  to  admit  free 
such  articles  of  common  use 
as  we  can  neither  produce  nor 
grow,  and  lay  duties  for  reve- 
nue mainly  upon  articles  of 
luxury  and  upon  such  articles 
of  manufacture  as  will,  we 
having  the  raw  material,  assist 
in  further  developing  the  re- 
sources of  the  country. "  Labor 
Reform  party  Platform  of  1872. 

"We  denounce  the  present 
tariff,  levied  upon  nearly  4000 
articles,  as  a  masterpiece  of  in- 
justice, inequality,  and  false 
pretense.  It  yields  a  dwind- 
ling, not  a  yearly  rising  reve- 
nue. It  has  impoverished 
many  industries  to  subsidize  a 
few.  It  prohibits  imports  that 
might  purchase  the  products 
of  American  labor.  It  has 
degraded  American  commerce 
from  the  first  to  an  inferior 
rank  on  the  high  seas.  It  has 
cut  down  the  sales  of  American 
manufactures  at  home  and 
abroad,  and  depleted  the  re- 
turns of  American  agriculture 
— an  industry  followed  by  half 
of  our  people.  It  costs  the 
people  five  times  more  than  it 
produces  to  the  treasury,  ob- 
structs the  processes  of  produc- 
tion, and  wastes  the  fruits  of 
labor.  It  prompts  fraud,  fos- 
ters smuggling,  enriches  dis- 
honest officials,  and  bankrupts 
honest  merchants.  We  de- 
mand that  all  custom-house 
taxation  shall  be  only  for 


Appendix  H 


261 


call  attention  to  its  growth 
abroad.  We  maintain  that 
the  prosperous  condition  of 
our  country  is  largely  due  to 
the  wise  revenue  legislation 
of  the  last  Republican  Con- 
gress. We  believe  that  all 
articles  which  cannot  be  pro- 
duced in  the  United  States, 
except  luxuries,  should  be  ad- 
mitted free  of  duty,  and  that 
on  all  imports  coming  into 
competition  with  the  products 
of  American  labor  there  should 
be  levied  duties  equal  to  the 
difference  between  wages 
abroad  and  at  home. ' '  Repub- 
lican Platform  of  1892. 

"We  renew  and  emphasize 
our  allegiance  to  the  policy  of 
protection  as  the  bulwark  of 
American  industrial  independ- 
ence and  the  foundation  of 
American  development  and 
prosperity.  This  true  Ameri- 
can policy  taxes  foreign  pro- 
ducts and  encourages  home 
industry;  it  puts  the  burden  of 
revenue  on  foreign  goods;  it 
secures  the  American  market 
for  the  American  producer;  it 
upholds  the  American  standard 
of  wages  for  the  American 
workingman;  it  puts  the  fac- 
tory by  the  side  of  the  farm, 
and  makes  the  American  far- 
mer less  dependent  on  foreign 
demand  and  price;  it  diffuses 
general  thrift,  and  founds  the 
strength  of  all  on  the  strength 
of  each.  In  its  reasonable 
application  it  is  just,  fair,  and 
impartial;  equally  opposed  to 
foreign  control  and  domestic 
monopoly,  to  sectional  dis- 
crimination and  individual 
favoritism."  Republican  Plat- 
form of  1896. 

"We  renew  our  faith  in  the 


revenue. "     Democratic   Plat- 
form of  1876. 

"Sufficient  revenue  to  pay 
all  expenses  of  the  federal  gov- 
ernment economically  admin- 
istered, including  pensions, 
interest  and  principal  of  the 
public  debt,  can  be  got  under 
our  present  system  of  taxation 
from  the  custom-house  taxes 
on  fewer  imported  articles, 
bearing  heaviest  on  articles  of 
luxury  and  bearing  lightest  on 
articles  of  necessity."  Demo- 
cratic Platform  of  1884. 

"Our  established  domestic 
industries  and  enterprises 
should  not  and  need  not  be 
endangered  by  the  reduction 
and  correction  of  the  burdens 
of  taxation.  On  the  contrary, 
a  fair  and  careful  revision  of 
our  tax  laws,  with  due  allow- 
ance for  the  difference  between 
the  wages  of  American  and 
foreign  labor,  must  promote 
and  encourage  every  branch 
of  such  industries  and  enter- 
prises, by  giving  them  assur- 
ance of  an  extended  market 
and  steady  and  continuous 
operations.  .  .  .  Upon  this 
question  of  tariff  reform  so 
closely  concerning  every  phase 
of  our  national  life,  and  upon 
every  question  involved  in  the 
problem  of  good  government, 
the  Democratic  party  submits 
its  principles  and  professions 
to  the  intelligent  suffrages  of 
the  American  people. "  Demo- 
cratic Platform  of  1888. 

"We  denounce  Republican 
protection  as  a  fraud — a  rob- 
bery of  the  great  majority  of 
the  American  people  for  the 
benefit  of  the  few.  We  declare 


262 


Appendix  H 


policy  of  protection  to  Ameri- 
can labor.  In  that  policy  our 
industries  have  been  estab- 
lished, diversified,  and  main- 
tained. By  protecting  the 
home  market,  competition  has 
been  stimulated  and  produc- 
tion cheapened.  Opportunity 
to  the  inventive  genius  of  our 
people  has  been  secured  and 
wages  in  every  department  of 
labor  maintained  at  high  rates 
— higher  now  than  ever  before, 
and  always  distinguishing  our 
working  people  in  their  better 
condition  of  life  from  those  of 
any  competing  country. "  Re- 
publican Platform  of  1900. 

"Protection  which  guards 
and  develops  our  industries  is 
a  cardinal  policy  of  the  Re- 
publican party.  The  measure 
of  protection  should  always  at 
least  equal  the  difference  in  the 
cost  of  production  at  home  and 
abroad. "  Republican  Plat- 
form of  1904. 


it  to  be  a  fundamental  principle 
of  the  Democratic  party  that 
the  federal  government  has  no 
constitutional  power  to  impose 
and  collect  tariff  duties,  except 
for  the  purposes  of  revenue  only, 
and  we  demand  that  the  collec- 
tion of  such  taxes  shall  be 
limited  to  the  necessities  of  the 
government  when  honestly  and 
economically  administered. " 
Democratic  Platform  of  1892. 

"Tariff  should  be  levied  only 
as  a  defense  against  the  foreign 
governments  which  levy  tariff 
upon  or  bar  out  our  products 
from  their  markets,  revenue 
being  incidental.  The  residue 
of  means  necessary  to  an  eco- 
nomical administration  of  the 
government  should  be  raised 
by  levying  a  burden  on  what 
the  people  possess  instead  of 
upon  what  they  consume." 
National  Prohibition  Platform 
of  1892. 

"Tariff  laws  should  be 
amended  by  putting  the  pro- 
ducts of  trusts  upon  the  free 
list,  to  prevent  monopoly 
under  the  plea  of  protection." 
Democratic  Platform  of  1900. 

"The  Democratic  party  has 
been  and  will  continue  to  be 
the  consistent  opponent  of 
that  class  of  tariff  legislation 
by  which  certain  interests  have 
been  permitted,  through  Con- 
gressional favor,  to  draw  a 
heavy  tribute  from  the  Ameri- 
can people.  This  monstrous 
prevention  of  those  equal  op- 
portunities which  our  political 
institutions  were  established  to 
secure  has  caused  what  may 
once  have  been  infant  indus- 
tries to  become  the  greatest 


Appendix  I  263 


combinations  of  capital  that 
the  world  has  ever  known. 
These  especial  favorites  of  the 
government  have,  through 
trust  methods,  been  converted 
into  monopolies,  thus  bringing 
to  an  end  domestic  competition, 
which  was  the  only  alleged 
check  upon  the  extravagant 
profits  made  possible  by  the 
protective  system. 

"We  denounce  protection  as 
a  robbery  of  the  many  to  en- 
rich the  few,  and  we  favor  a 
tariff  limited  to  the  needs  of 
the  government  economically 
administered,  and  so  levied  as 
not  to  discriminate  against  any 
industry,  class,  or  section,  to 
the  end  that  the  burdens  of 
taxation  shall  be  distributed 
as  equally  as  possible. "  Dem- 
ocratic Platform  of  1904. 


THE   THEORY   OF   AN   INCOME   TAX 

Income  Tax  Favored. 

"A  graduated  income-tax  is 
the  most  equitable  system  of 
taxation,  placing  the  burden 
of  government  on  those  who 
can  best  afford  to  pay,  instead 
of  laying  it  on  the  farmers  and 
producers,  and  exempting  mil- 
lionaire bondholders  and  cor- 
porations. "  The  Union  Labor 
Platform  of  1888. 

"We  demand  a  graduated 
income-tax. "  National  Peo- 
ple's Party  Platform  of  1892. 

"We  demand  ...  a  pro- 
gressive income-tax  and  tax 
on  inheritances;  the  smaller 
incomes  to  be  exempt. "  So- 
cialist-Labor Platform  of  1892. 


264  Appendix  J 


"We  demand  a  graduated 
income-tax,  to  the  end  that 
aggregate  wealth  shall  bear  its 
just  proportion  of  taxation, 
and  we  denounce  the  recent 
decision  of  the  Supreme  Court 
relative  to  the  income-tax  law 
as  a  misinterpretation  of  the 
Constitution  and  an  invasion 
of  the  rightful  powers  of  Con- 
gress over  the  subject  of  taxa- 
tion."  People's  party  Plat- 
form of  1896. 

"We  demand  a  levy  and  col- 
lection of  a  graduated  tax  on 
incomes  and  inheritances,  and 
a  constitutional  amendment 
to  secure  same,  if  necessary." 
People's  party  Platform  of 
1900.  Also  found  in  the  Silver 
Republican  Platform  of  1900. 

"We  congratulate  the  coun- 
try upon  the  triumph  of  an 
important  reform  demanded 
in  the  last  national  platform — 
namely,  the  amendment  of  the 
federal  constitution  authoriz- 
ing an  income  tax."  Demo- 
cratic Platform  of  1912. 


THE   THEORY   OF  DIRECT   LEGISLATION 

Initiative,  Referendum,  and 
Recall  Advocated. 

"We  commend  to  the 
thoughtful  consideration  of  the 
people  and  the  reform  press, 
the  legislative  system  known 
as  the  initiative  and  referen- 
dum."  National  People's 
party  Platform  of  1892. 

"The  people  have  the  right 
to  .propose  laws  and  to  vote 
upon  all  measures  of  impor- 


Appendix  K  265 


tance,  according  to  the  refer- 
endum principle. "  Social- 
Labor  Platform  of  1892. 

"We  favor  a  system  of 
direct  legislation  through  the 
initiative  and  referendum, 
under  proper  constitutional 
safeguards. "  People's  party 
Platform  of  1896. 

"The  initiative  and  referen- 
dum, and  proportional  repre- 
sentation, should  be  adopted. " 
National  party  Convention  of 
1896. 

"We  demand  the  initiative 
and  referendum,  and  the  im- 
perative mandate  for  such 
changes  of  existing  fundamen- 
tal and  statute  law  as  will  en- 
able the  people  in  their  sover- 
eign capacity  to  propose  and 
compel  the  enactment  of  such 
laws  as  they  desire,  to  reject 
such  as  they  deem  injurious  to 
their  interests,  and  to  recall 
unfaithful  public  servants. " 
People's  party  Platform  of 
1900. 


THEORY   OF   THE   RECALL    OF    JUDICIAL   DECISIONS 

Recall  of  Decisions  Advocated. 

"The  Progressive  Party  de- 
mands such  restriction  of  the 
power  of  the  courts  as  should 
leave  to  the  people  the  ulti- 
mate authority  to  determine 
fundamental  questions  of  social 
welfare  and  public  policy.  To 
secure  this  end  it  pledges  itself 
to  provide: 

"i.  That  when  an  act, 
passed  under  the  police  power 


266  Appendix  K 


of  the  State,  is  held  unconsti- 
tutional under  the  State  Con- 
stitution by  the  courts,  the 
people,  after  an  ample  interval 
for  deliberation,  shall  have  an 
opportunity  to  vote  on  the 
question  whether  they  desire 
the  act  to  become  a  law,  not- 
withstanding such  decision. 

"2.  That  every  decision  of 
the  highest  appellate  court  of 
a  State  declaring  an  act  of  the 
Legislature  unconstitutional  on 
the  ground  of  its  violation  of 
the  federal  constitution  shall 
be  subject  to  the  same  review 
by  the  Supreme  Court  of  the 
United  States  as  is  now  ac- 
corded to  decisions  sustaining 
such  legislation. "  Progressive 
(Republican)  Platform  of  1912. 


INDEX  OF  CASES 


Addyson  Pipe  and  Steel  Co.  ».  United  States  (175  U.  S., 

21 1) 81 

American  Insurance  Co.  v.  356  Bales  of  Cotton  (i  Peters, 

511) 86,88 

American  Insurance  Co.  v.  Canter  (i  Peters,  511) 88 

Armstrong  v.  United  States  (182  U.  S.f  243) 99 

Arnold  v.  United  States  (112  U  .  S.,  580) 181 

B 

Bank  of  Commerce  i>.  City  of  New  York  (2  Black,  620) ...  60 

Briscoe  v.  Bank  of  Kentucky  (n  Peters,  257) 10,  150 

Brig  Aurora  (7  Cranch,  380) 177 

Bronson  v.  Kimpton  (8  Wallace,  444) 152 

Bronson  v.  Rhodes  (7  Wallace,  229) 152 

Butler  v.  Harwitz  (7  Wallace,  256) 152 

C 

Calder  v.  Bull  (3  Dallas,  386) 37 

Charles  River  Bridge  v.  The  Warren  Bridge  Co.  (n  Peters, 

420) II 

Cohens  v.  Virginia  (6  Wheaton,  264) 69 

Craig  et  al.  v.  Missouri  (4  Peters,  410) 1 1,  150 

Cross  v.  Harrison  (16  Howard,  164) 94 

D 

Darrington  ».  Missouri  (13  Howard,  12) 150 

Dartmouth  College  v.  Woodward  (4  Wheaton,  518) 12 

De  Lima  v.  Bidwell  (182  U.  S.,  i) 96,  99, 181 

Dooley  ».  United  States  (182  U.  S.,  222) 99 

E 

Ex  parte  Wagner  (21  Oklahoma,  33) 214 

267 


268  Index  of  Cases 


Field  and  Company  ».  Clark  (143  U.  S.,  649) 179 

Fleming  v.  Page  (9  Howard,  603) 94 

Fletcher  v.  Peck  (6  Cranch,  87) 12,  71 

Fourteen  Diamond  Rings  v.  United  States  (183  U.  S.,  183) .  .  99 

G 

Gibbons  ».  Ogden  (9  Wheaton,  i) 57 

Goetz  v.  United  States  (182  U.  S.,  221) 99 

Grossman  v.  United  States  (182  U.  S.,  222) 99 

H 

Hans  v.  Louisiana  (134  U.  S.,  i) 228 

Hepburn  v.  Griswold  (8  Wallace,  603) 14,  60,  153 

Holmes  v.  Walton 35 

Hopkins  v.  City  of  Duluth  (81  Minnesota,  189) 216 

Hylton,  v.  United  States  (3  Dallas,  171) 175 

I 

Import  Rate  Case 81 

Income  Tax  Case 15 

In  re  Pfahler  (150  California,  71) 215 

In  re  Duncan  (129  U.  S.,  449) 218 

Insurance  v.  Soule  (7  Wallace,  433) 187 

J 

Jordon  v.  Dayton  (4  Ohio,  294) 36 

Julliard  v.  Greenman  (no  U.  S.,  421) 60, 160 

K 

Kadderly  v.  Portland  (44  Oregon,  118) 213 

Kierman  v.  City  of  Portland  (112  Pacific,  402) 214 

Knox  v.  Lee  (12  Wallace,  315) 146 

L 

Livingston  and  Fulton  v.  Van  Ingen  (9  Johns,  507) 57 

M 

Marbury  v.  Madison  (i  Cranch,  137) 6,  39,109 

McCullough  v.  State  of  Maryland  (4  Wheaton,  316). 56,  115,  126 

Martin  v.  Hunter's  Lessee  (i  Wheaton,  304) 52 

Mayor  of  City  of  New  York  v.  Miln  (n  Peters,  102) 10 


Index  of  Cases  269 

o 

PAGE 

Osborn  v.  the  United  States  Bank  (9  Wheaton,  738) 130 

P 

Parker  v.  Davis  (12  Wallace,  315) 146 

Pennsylvania  v.  Wheeling  and   Belmont  Bridge  Co.  (18 

Howard,  421) 59 

Penhallow  v.  Doane  (3  Dallas,  507) 69,  75 

Pollock  v.  Farmers'  Loan  and  Trust  Co.  (157  U.  S.,  759) . .      189 
Prize  Cases  (2  Black,  635) 13 

R 

Robbins  v.  Taxing  District  (120  U.  S.,  489) 80 

Robin  ».  Hardaway  (Jefl.  109) 29,  39 

S 

Saxonville  Mills  ».  Russell 179 

Scooner  Hoppett  ».  United  States  (7  Cranch,  386) 178 

Scott  v.  Sanford  (19  Howard,  393) 86 

Springer  v.  United  States  (102  U.  S.,  586) 188 

T 
Texas  ».  White  (7  Wallace,  700) 14,  75 

U 

United  States  v.  Fisher  (2  Cranch  496) 52 

United  States  ».  Joint  Traffic  Association  (171  U.  S.,  505) ...       81 
United  States  ».  Peters  (3  Dallas,  121) 70 

V 

Veazie  Bank  v.  Fenno  (18  Wallace,  482) 139 

W 

Wales  v.  Belcher  (3  Pick,  508) 205 

White  v.  Hart  and  Davis  (13  Wallace,  646) 78 


GENERAL  INDEX 


Act,  Legal  Tender,  153 
Adams,    J.    Q.,    on    internal 

improvements,  116 
Amendment,  Sixteenth,  197 
American  doctrine  of  judicial 

supremacy,  27 
Andrews,     E.     Benjamin,     on 

legal-tender  cases,  163 
Anti-Federalist,  origin  of,  47 


B 


Bagehot  on  legislative  suprem- 
acy in  England,  24 

Bailey,  Senator,  on  constitu- 
tionality of  income  tax,  194 

Bascom's  criticism  of  the  in- 
come tax  decision,  193 

Beveridge  on  imperialism,  92 

Binney,  Horace,  on  function 
of  Supreme  Court,  3 

Blackstone  on  legislative  su- 
premacy in  England,  24 

Bourne,  Senator,  on  direct 
legislation,  223 

Broom,  Herbert,  on  law  as  an 
inexact  science,  4 

Bryce,  on  early  recognition 
of  judicial  supremacy,  32; 
political  issues  and  court 
decrees,  46;  on  necessity  of 
loose  construction,  63;  in- 
fluence on  direct  legislation, 
207;  on  basis  of  party 
cleavage,  246 

Bunderstadt,  47 


Calhoun  on  internal  improve- 
ments, in 

Carson  on  party  conviction 
and  court  decrees,  4 

Chase,  appointed  Chief  Justice 
13;  opinion  on  State  bank- 
ing acts,  140;  on  legal- tender 
acts,  153 

Choate,  Rufus,  on  the  case  of 
Marbury  v.  Martin,  43 

Civil  Law,  doctrine  of  judicial 
supremacy  under,  22 

Clay,  opposition  to  Taney,  9; 
on  internal  improvements, 
107;  attitude  toward  bank, 
125;  sponsor  of  the  pro- 
tective theory,  167;  nomi- 
nated for  presidency,  171 

Coke,  Lord,  natural  justice 
theory  and  court  supremacy, 

25 

Convention,  free  trade,  170 

Court,  General,  of  Massachu- 
setts, 204 

Coxe,  Brinton,  on  judicial 
supremacy  in  the  civil  law, 
21 ;  on  judicial  supremacy 
in  English  law,  25 

Crises,  nullification  pamphlet, 
170 

Cullom  Act,  80 

D 

De  Tocqueville  on  peril  of  im- 
perialistic government,  103 

Dicey  on  legislative  suprem- 
acy, 26 


271 


272 


General  Index 


E 

Ellwpod,  Professor,  on  public 
opinion,  I 

Esmein  on  legislative  suprem- 
acy in  Europe,  28 


Federal  Party,  origin  of,  47 

Fiske  on  judicial  supremacy, 
18 

Frederick,  Karl  T.,  on  recall 
of  decisions,  238 

Fuller,  Chief  Justice,  on  in- 
come tax,  189 

G 

Garner  on  German  theory  of 
legislative  supremacy,  27 

Gittell  on  advantages  and 
defects  of  direct  legislation, 
224 

Goodnow  on  function  of 
parties,  242 

Government,  definition  of  im- 
mediate, 212;  definition  of 
representative,  212 

H 

Hamilton,  on  judicial  suprem- 
ac7»  33!  advocate  of  loose 
constitution,  48 ;  financial 
report,  124 

Henry,  Patrick,  tender  of 
chief  justiceship,  6 

Hoar,  Attorney-General,  on 
taxation,  139 

Holland,  Professor,  definition 
of  state,  74 


Interstate  Commerce  Act,  80 

J 

Jackson,  on  internal  improve- 
ments,   117;    opposition    to 


bank,  133;  appointment  of 
Taney,  8 

Jefferson,  advocate  of  strict 
construction,  48;  incon- 
sistency, 49;  amendment 
proposed,  107;  on  internal 
improvements,  106 

Jersey,  New  Plan,  47 

Johnson,  Justice,  on  internal 
improvements,  115 


Laws,  income  tax,  185 

Legal  Tender  Act,  constitu- 
tionality of,  153 

Lex  Siete  Partidas,  22 

Lincoln  on  integrity  of  the 
courts,  229 

Littleton,  opposition  to  recall 
of  judges,  231 

M 

Macaulay  on  temperamental 
origin  of  party  difference, 

243 

Madison,  attitude  toward  Con- 
stitution, 5;  author  of  first 
tariff  bill,  165;  tariff  faith, 
footnote,  1 66;  on  internal 
improvements,  in;  opposi- 
tion to  bank,  124 

Marshall,  John,  early  attitude 
toward  Constitution,  5; 
death,  8;  before  Virginia 
Convention,  34 

Mathews,  Justice,  on  constitu- 
tionality of  a  protective 
tariff,  179 

Mill  on  taxation,  186 

Monroe,  message  on  internal 
improvements,  112 

N 

Nation,  meaning  of,  73 
National  Banking  Act  of  1836, 

137 

Nationality,  growth  of,  67 


General  Index 


273 


Nelson,  Justice,  dissenting 
opinion  in  Veazie  Bank 
Case,  141 

Nullification,  doctrine,  169; 
Ordinance  of,  170 

O 

Oregonian,  The,  on  representa- 
tive government,  222 


Pomeroy,  on  limit  of  judicial, 
function,  61 ;  on  imperialism, 
88 

Public  opinion,  meaning  of,  I 
Putney  on  the  logic    of    the 
insular  cases,  102 

R 

Ratification  of  Constitution, 
attitude  of  first  court,  7 

Recall  of  decisions,  232;  oppo- 
sition to,  236 

Recall  of  judges,  230;  growth  of 
sentiment  for,  231 

Remington,  Harold,  on  recall 
of  decisions,  240 

Roosevelt,  speech  before  Ohio 
State  Convention  229;  on 
recall  of  decisions,  232; 
Carnegie  Hall  speech,  234 


Skinner  on  income  tax,  192 
Social  judgments,  number  and 

nature,  2 
State,     general     meaning     of 

term,    73;    meaning    of,    in 

Constitution,  73 
Statenbund,  47 


Stemson,  Professor,  on  direct 
legislation,  222 

Story,  Justice,  failure  to  secure 
chief  justiceship,  8 

Stubbs  on  growth  of  legisla- 
tive supremacy,  23 


Taft,  opposition  to  recall  of 
decisions,  236 

Taney,  appointed  as  Chief 
Justice,  9;  Dred  Scott  de- 
cision, 13;  death,  13 

Tax,  Income  Tax  Law  of  1912, 
199 

U 

Underwood,  The,  Bill  of  1912, 
196 


Virginia  Plan,  47 
W 

War,  civil,  and  the  Supreme 
Court,  13 

Webster's  Eulogy  of  the  Su- 
preme Court,  3 

Wellman's  summary  of  legal 
status  of  imperialism,  ipi 

Whigs,   origin  and  principles, 

137 

Wilson,  Woodrow,  on  consti- 
tutional construction,  63 ; 
definition  of  state,  74; 
representative  government, 
203 

Wolsey,  definition  of  state,  74 
Woodburn  on  basis   of   party 
cleavage,  245 


A     000  703  745    0 


